Winston v Commonwealth of Australia (No 3)

[2024] NSWSC 693

Supreme Court

New South Wales

Medium Neutral Citation:

Winston v Commonwealth of Australia (No 3) [2024] NSWSC 693

Hearing dates:

On the papers

Date of orders:

7 June 2024

Decision date:

07 June 2024

Jurisdiction:

Common Law

Before:

Schmidt AJ

Decision:

Order that Mr Winston bear:

(1)   the Commonwealth’s costs of the motions by which he sought, but abandoned, leave to amend his statement of claim by various proposed pleadings; and

(2)   the Commonwealth’s costs thrown away as the result of the leave he was granted to proceed on MFI 10.

Catchwords:

COSTS – costs of motions and proposed pleadings not finally pursued – costs thrown away as a result of leave to amend statement of claim – costs order made in favour of party opposing leave sought

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 64

Uniform Civil Procedure Rules 2005 (NSW), r 42.1

Cases Cited:

Chapman v Luminis Pty Ltd [2003] FCAFC 162
Groves v Commonwealth (1982) 150 CLR 113; [1982] HCA 2
Winston v Commonwealth of Australia [2024] NSWSC 464

Category:

Costs

Parties:

Robert Wilson Winston (Plaintiff)
Commonwealth of Australia (Defendant)

Representation:

Counsel:
A G Melick SC and C B Thomson (Plaintiff)
M Fordham SC and A Lyons (Defendant)

Solicitors:
Ken Cush & Associates (Plaintiff)
Australian Government Solicitor (Defendant)

File Number(s):

2019/339343

Publication restriction:

Nil

JUDGMENT

1. In April 2024 I gave Mr Winston leave to proceed on an amended pleading, Harrison J having in 2019 granted him the extension of time which he required to pursue his claims: Winston v Commonwealth of Australia [2024] NSWSC 464. They concern alleged negligence involved in a collision at sea in 1969 in which Mr Winston was injured.

2. This judgment deals with the parties’ dispute about the costs of the various motions by which Mr Winston pursued the leave he required to proceed on an amended pleading, his original statement of claim having earlier been struck out by consent.

The parties’ dispute about costs of the motions

3. Mr Winston contends that the Commonwealth should bear his costs of his original motion, as well as of his amended and further amended motions, given the way in which the Commonwealth pursued its objections to his variously proposed pleadings and the amendments which he made, they finally resulting in him being granted leave to proceed on the basis of what he pleaded in MFI 10.

4. The Commonwealth’s case is that Mr Winston should pay part of its costs, given his repeated amendment of his motions and proposed statement of claim, Mr Winston having accepted as he thereby did, various of its objections to his proposed pleadings.

The applicable law

5. The usual order under the Uniform Civil Procedure Rules 2005 (NSW) is that costs follow the event: r 42.1. In an appropriate case a court will make an order for costs even when there has been no hearing on the merits. Where, for example, one party, after litigating for some time, effectively surrenders to the other: Chapman v Luminis Pty Ltd [2003] FCAFC 162 at [7].

6. There is also no question that when it is leave to amend a document which is sought, justice may require that such leave be granted on terms which oblige the party seeking the leave to pay the other party’s costs thrown away as a result of the amendment: s 64 of the Civil Procedure Act2005 (NSW). Such orders are frequently made, but they may be refused if an application for leave has been unreasonably opposed.

The relevant history

7. The relevant procedural history was discussed in the April judgment: at [9]-[14]. After Mr Winston’s statement of claim was struck out by consent he repleaded, but in terms to which the Commonwealth did not consent. The result was that he filed a number of motions and also repeatedly reformulated his proposed pleadings, given the Commonwealth’s ongoing objections to what he proposed. On the last occasion, his then proposed amended statement of claim was further amended during the course of the April hearing, when he finally successfully pressed his application for leave to proceed in respect of the pleading marked MFI 10.

8. That proposal was only made after the lunch adjournment, after the Commonwealth’s ongoing objections had been explained. Still the Commonwealth did not consent.

9. It must be accepted that this course reflected Mr Wilson’s acceptance of the validity of arguments which the Commonwealth had earlier advanced, in opposing the various amended pleadings which he had to that point served. Many were not pressed and even that pressed at the commencement of the hearing, was abandoned.

10. Those amendments had their origin in an expert’s opinion which Mr Winston first obtained in 2022. It was Commander Whitehouse’s reports which led to the proposed amendment of the statement of claim to include claims of negligence in relation to the planning of the SEATO exercise during which the collision occurred, as well as the claimed negligence of Admiral Crabb in relation to the collision.

11. The former is what led to the question of whether Mr Winston required a further extension of time being raised by the Commonwealth. He pursued that extension by his further amended motion, but abandoned that application when leave was pursued in respect of MFI 10.

12. That was because the proposed planning claim was effectively abandoned by MFI 10: April decision at [75]. What MFI 10 successfully did was thus extend the earlier claimed negligence of the officers and crew of the Melbourne which had resulted in the collision and Mr Winston’s injuries, to include the alleged negligence of Admiral Crabb. Mr Winston claimed that it had also contributed to the materialisation of the risk of the collision: at [52].

13. I concluded that this claim did not go beyond the extension which Harrison J had granted in 2019, but that if it did, I would have granted a further extension: at [53].

A costs order must be made in favour of the Commonwealth

14. In now resolving the remaining costs dispute, it must be remembered that without obtaining leave to amend his pleadings, Mr Winston could not have pursued his claims against the Commonwealth. That is because his original statement of claim had been struck out by consent.

15. Mr Winston did not finally pursue his first two motions, or the various proposed pleadings he had earlier advanced. What he pursued by his further amended motion, but withdrew at the final hearing, was his attempt to extend his claim to include alleged negligence in the planning of the SEATO exercise and the extension which that claim required.

16. That was a claim which Harrison J did not have to consider, given what Mr Winston had pursued when he first sought an extension of time to pursue his damages claim.

17. In the circumstances I do not accept that the Commonwealth can rightly be criticised for raising the question of whether Mr Winston required another extension, given that by his further amended motion he sought that extension, as well as leave to proceed on his then proposed amended pleading. Without such an extension, the proposed planning claim could not have been pursued.

18. I also do not accept that the Commonwealth can rightly be criticised for resisting Mr Winston’s application for leave to amend his pleadings in terms which he himself abandoned during the course of the final hearing.

19. The Commonwealth’s objections to Mr Winston’s various earlier pleadings, including that which he pursued when the final hearing commenced, were plainly not unreasonable, given how Mr Winston responded, that is, by abandoning them all.

20. That the course he pursued by his repeated repleading and abandonment of those pleadings resulted in costs of the motions which he ought to bear must thus be accepted, he having abandoned as he did his pursuit of leave to proceed on the basis of all those pleadings. That course reflected his acceptance that the Commonwealth had a basis for the objections which it took to those variously proposed pleadings.

21. It follows that the conclusion that justice also requires that Mr Winston bear the Commonwealth’s costs of resisting the leave he had sought by his motions, which he finally did not pursue, cannot be avoided.

22. That justice also requires that Mr Winston bear the costs thrown away as the result of the leave which he finally did obtain, also follows. Leave was only sought in respect of MFI 10 after Mr Wilson again amended his proposed pleading during the afternoon of the final hearing of his further amended motion. It was only then that he abandoned his proposed claims in relation to the planning of the SEATO exercise.

23. It may not be accepted that the Commonwealth’s continued objection to MFI 10 was then unreasonable, given how it was pleaded and the time at which its pursuit was first raised, without prior notice.

24. I did finally conclude that this pleading adequately put the Commonwealth on notice of the claims Mr Winston wished to pursue against it in respect of all of the alleged negligence which he claims resulted in the collision and the injuries he suffered as a result.

25. I came to that conclusion despite the Commonwealth’s objections, including that the proposed pleading still did not deal with what a safe system of operation would have involved at the time of the collision. That was because I concluded that what was finally pleaded did give it a fair opportunity to meet Mr Winston’s claims, without leaving it in a position where it will be subject to ambush and surprise.

26. In arriving at that conclusion, it was relevant that what MFI 10 pleaded also gave rise to a real issue between the parties about whether a civil claim, so pursued, is maintainable, given what was decided in Groves v Commonwealth (1982) 150 CLR 113; [1982] HCA 2. In my view that precludes the conclusion that the Commonwealth’s continuing objections were unreasonable.

27. In the result I have concluded that justice does require that Mr Winston must also bear the costs thrown away as the result of the leave he finally obtained, to proceed on MFI 10.

Orders

28. For these reasons I order that Mr Winston bear:

1. the Commonwealth’s costs of the motions by which he sought, but abandoned, leave to amend his statement of claim by his variously proposed pleadings; and

2. the Commonwealth’s costs thrown away as the result of the leave he was granted to proceed on MFI 10.

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Decision last updated: 07 June 2024