Wentworth v Rogers (No 2)

[2016] NSWSC 284

Supreme Court

New South Wales

Medium Neutral Citation:	Wentworth v Rogers (No 2) [2016] NSWSC 284
Hearing dates:	21 June 2010
Date of orders:	17 March 2016
Decision date:	17 March 2016
Jurisdiction:	Common Law
Before:	Hidden J
Decision:	Plaintiff awarded costs of first trial
Catchwords:	COSTS – trial of plaintiff’s claim and defendant’s cross-claim in 1985 – verdict for the defendant in both claims – new trial ordered in 1987 – costs of first trial to abide the outcome of the new trial – plaintiff successful in new trial of her claim – cross-claim to be separately tried but not pursued – cross-claim later dismissed – plaintiff’s entitlement to costs of first trial
Cases Cited:	Wentworth v Rogers (Court of Appeal (unreported) 5 May 1995) Wentworth v Rogers (No 1) NSWSC 283 Wentworth v Rogers (No 10) (1987) 8 NSWLR 398.
Category:	Costs
Parties:	Katherine Wentworth (plaintiff) Gordon Rogers (defendant/cross claimant)
Representation:	Counsel: Katherine Wentworth (In person) Gordon Rogers (No appearance)
File Number(s):	1982/1055

Judgment

1. HIS HONOUR: By notice of motion the plaintiff, Katherine Wentworth, seeks an order for costs with interest in relation to the trial before Maxwell J and a jury of her claim against the defendant for aggravated assault, which took place in late 1985. I heard this motion along with another motion by the plaintiff brought against the defendant and his second wife: Wentworth v Rogers (No 1) NSWSC 283. I have prepared a separate judgment for that motion. In that motion I referred to the fact that at one stage the plaintiff sought that I disqualify myself from the matter but, in the event, I considered that she had waived any such application. That waiver applies to the present motion. I am satisfied that the defendant was on notice of this motion, but there was no appearance by or for him at the hearing.

2. There is no need to refer to the issues in the proceedings. The defendant cross-claimed for malicious prosecution, having been acquitted of criminal charges arising from the incident the subject of the proceedings. The jury found verdicts for the defendant in both the plaintiff’s claim and his cross-claim. On 6 March 1987, the Court of Appeal set aside those verdicts and ordered a new trial. The Court ordered that the costs of that first trial were to abide the result of the second trial: Wentworth v Rogers (No 10) (1987) 8 NSWLR 398.

3. The second trial came before Sully J, who ordered that the trial of the plaintiff’s claim should proceed separately from the defendant’s cross-claim. The trial of the plaintiff’s claim took place in June 1994, and the jury found her claim established and awarded her damages. On 24 June 1994, Sully J ordered the defendant to pay half of her costs of that claim. The history of the progress of the defendant’s cross claim is a lengthy one, traced in affidavits of the plaintiff filed for the purpose of this motion. It is sufficient to say that it was not pursued and ultimately, on 3 February 2010, Registrar Bradford dismissed it with costs.

4. The plaintiff now seeks the costs of that first trial. There had been some controversy about whether the issue of the costs of that trial, in the light of the Court of Appeal’s decision, remained outstanding. This was itself the subject of some litigation, which resolved that it was. The plaintiff had appealed unsuccessfully against the award by Sully J of only half her costs: Wentworth v Rogers (Court of Appeal, unreported, 5 May 1995). This issue came before the Court of Appeal again on 8 December 2000, when the Court clarified the position at [14], as follows:

“The result of the order of Sully J, as varied by this Court when read, as it must be, with the existing order of this Court on 6 March 1987, is to give the claimant the general costs of her action from its commencement, and the costs of the second trial, but not the costs of the first trial, or any part of the costs of the first trial.”

5. The Court went on to confirm at [23] that its order on 6 March 1987 that the costs of the first trial were to “abide the result of the second trial” meant the disposition not only of her claim but the defendant’s cross-claim, given that the order for a new trial embraced both claims. Accordingly, the result of the second trial would not be known until the cross-claim had been disposed of. It now has been, and it is open to the plaintiff to seek the costs of that trial.

6. Plainly enough, given the outcome of her appeal against the verdicts in the first trial and of the re-trial of her claim, she is entitled to the costs of the first trial.

7. There is in evidence a very lengthy and detailed bill of costs rendered to her by the solicitors representing her at the first trial. It embraces items from the outset of the proceedings in 1982, but a large part of it appears to be preparation for the trial in 1985. There is force in the plaintiff’s assertion in one of her affidavits that it would not now be practicable to submit that bill for assessment, given the length of time that has passed since the costs were incurred and the need to hunt up source documents to justify the numerous items for which fees were charged. She asked, accordingly, that I award a lump sum for the costs and that, I think, is the appropriate course.

8. That said, the assessment of the appropriate sum is not easy. After discounting some items for which fees were incurred after the completion of the first trial, the total amount sought by the bill was, in round figures, $186,000. The plaintiff’s evidence is that she paid $120,000 on account of costs in 1985. She submitted that, to arrive at an appropriate figure for party and party costs, the figure of $186,000 should be reduced by 20 to 25% in round figures, this would mean an amount between $140,000 and $150,000. That figure, however, would need to be further reduced to reflect the fact that it is only the costs of the first trial that are outstanding and some of the amount claimed would be part of the general costs of the action embraced by Sully J’s order.

9. As best I can assess it, the costs sought in the solicitors’ bill are not unreasonable. In my view, the appropriate figure for the costs of the first trial is $100,000. The plaintiff seeks interest from 24 December 1985, the date the trial ended, or 6 March 1987, the date of the Court of Appeal’s decision. The latter, I think, is the suitable date. There was no delay in her seeking these orders. As I have said, her entitlement to do so arose upon the dismissal of the defendant’s cross-claim on 3 February 2010, and her motion seeking the costs was filed on 26 March 2010. Some of the delay since then might be attributed to her pursuit of the application that I disqualify myself, but it is not such as to disentitle her from the order which she seeks.

10. Accordingly, the defendant is to pay the plaintiff’s costs of the first trial in the sum of $100,000, with interest at the Supreme Court rates from 6 March 1987.

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Decision last updated: 31 March 2016