Duffin v Mount Arthur Coal Pty Ltd (No 2) [2020] NSWSC 790

Supreme Court New South Wales

Medium Neutral Citation: Duffin v Mount Arthur Coal Pty Ltd (No 2) [2020] NSWSC 790 Hearing dates: On the papers Date of orders: 23 June 2020 Decision date: 23 June 2020 Jurisdiction: Common Law Before: Harrison AsJ Decision: The court orders that:

(1) The costs order made on 16 March 2020 that the defendant pay the plaintiff's costs on an ordinary basis is varied by adding the words "up to and including 30 August 2018" and then "as from 31 January 2018 on an indemnity basis." Catchwords: COSTS – No point of principle Legislation Cited: Civil Procedure Act 2005 (NSW), ss 96, 98 Uniform Civil Procedure Rules 2005 (NSW), rr 20.26, 42.14 Cases Cited: Duffin v Mount Arthur Coal Pty Ltd [2019] NSWSC 229 Leach v Nominal Defendant (QBE Insurance (Australia) Ltd) (No 2) [2014] NSWCA 391 South Eastern Area Health Service v King [2006] NSWCA 2 Category: Costs Parties: Gemma Ann Duffin (Plaintiff) Mount Arthur Coal Pty Limited (Defendant) Representation: Counsel: N Polin SC with M Best (Plaintiff) M McCulloch SC with D Stanton (Defendant)

Solicitors: Morgan + English (Plaintiff) HWL Ebsworth Lawyers (Defendant) File Number(s): 2016/70111 Publication restriction: Nil

Judgment 1. HER HONOUR: On 16 March 2020, I delivered judgment in Duffin v Mount Arthur Coal Pty Ltd [2019] NSWSC 229 ("Duffin"), subject to the parties providing calculations of the assessment of particular damages. 2. On 20 May 2020, I entered judgment in favour of the plaintiff in the sum of $2,494,386.40. The defendant had made workers compensation payments in the sum of $345,401.59. 3. In Duffin at [400], I made an order that the defendant pay the plaintiff's costs on an ordinary basis. The plaintiff has made an application that the costs order in her favour be varied pursuant to s 96 of the Civil Procedure Act 2005 (NSW). A timetable was set for the parties to provide written submissions. I have now received their submissions. 4. The plaintiff relied upon the affidavit of her solicitor, Jessica Boatwright, dated 27 May 2020. The defendant did not rely on any affidavit evidence. 5. The plaintiff seeks that the costs order made in her favour be varied as follows: "The defendant is to pay the plaintiff's costs on an ordinary basis until 28 September 2018 and on an indemnity basis from 29 September 2018." 1. The starting point in awarding costs is s 98 of the Civil Procedure Act. It relevantly reads: "98 Courts powers as to costs (1) Subject to rules of court and to this or any other Act: (a) costs are in the discretion of the court, and (b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and (c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis. (2) Subject to rules of court and to this or any other Act, a party to proceedings may not recover costs from any other party otherwise than pursuant to an order of the court. ..." 1. Rule 42.14 of the Uniform Civil Procedure Rules 2005 (NSW) (the "UCPR") relevantly reads: "42.14 Where offer not accepted and judgment no less favourable to plaintiff (1) This rule applies if the offer is made by the plaintiff, but not accepted by the defendant, and the plaintiff obtains an order or judgment on the claim no less favourable to the plaintiff than the terms of the offer. (2) Unless the court orders otherwise, the plaintiff is entitled to an order against the defendant for the plaintiff's costs in respect of the claim: (a) assessed on the ordinary basis up to the time from which those costs are to be assessed on an indemnity basis under paragraph (b), and (b) assessed on an indemnity basis: (i) if the offer was made before the first day of the trial, as from the beginning of the day following the day on which the offer was made, and (ii) ..." 1. UCPR 20.26 relevantly reads: "20.26 Making of offer (cf SCR Part 22, rules 1A, 2, 3 and 4; DCR Part 19A, rules 1, 2, 2A, 3 and 4; LCR Part 17A, rules 2 and 5) (1) In any proceedings, any party may, by notice in writing, make an offer to any other party to compromise any claim in the proceedings, either in whole or in part, on specified terms. (2) An offer under this rule: (a) must identify: (i) the claim or part of the claim to which it relates, and (ii) the proposed orders for disposal of the claim or part of the claim, including, if a monetary judgment is proposed, the amount of that monetary judgment, and … (c) must not include an amount for costs and must not be expressed to be inclusive of costs, and (d) must bear a statement to the effect that the offer is made in accordance with these rules, and … (f) must specify the period of time within which the offer is open for acceptance. (3) An offer under this rule may propose: (a) a judgment in favour of the defendant: (i) with no order as to costs, or (ii) despite subrule (2) (c), with a term of the offer that the defendant will pay to the plaintiff a specified sum in respect of the plaintiff's costs, or (b) that the costs as agreed or assessed up to the time the offer was made will be paid by the offeror, or (c) that the costs as agreed or assessed on the ordinary basis or on the indemnity basis will be met out of a specified estate, notional estate or fund identified in the offer. … (5) The closing date for acceptance of an offer: (a) in the case of an offer made two months or more before the date set down for commencement of the trial-is to be no less than 28 days after the date on which the offer is made, and (b) in any other case-is to be such date as is reasonable in the circumstances." 1. By email dated 30 August 2018, the plaintiff's solicitors served an offer of compromise on the defendant, which relevantly reads: "1. Pursuant to Rule 20.26 of the Uniform Civil Procedure Rules the Plaintiff makes an offer of compromise in this matter in the sum of $1,365,000.00 plus costs as agreed or assessed. 2. This offer remains open for a period of 28 days." 1. The defendant did not respond to this email.