Miles v Doyle (No 3) [2021] NSWSC 1524

Supreme Court New South Wales

Medium Neutral Citation: Miles v Doyle (No 3) [2021] NSWSC 1524 Hearing dates: 23 November 2021 Date of orders: 23 November 2021 Decision date: 23 November 2021 Jurisdiction: Common Law Before: Cavanagh J Decision: (1) I order that the defendant pay the plaintiff's costs on an ordinary basis up to 5 July 2018 and on an indemnity basis from 6 July 2018. (2) I make an order in favour of the plaintiff for costs pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW) in the total sum of $213,000. Catchwords: COSTS – Indemnity costs – Gross lump sum costs order Legislation Cited: Civil Liability Act 2002 (NSW) Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Bobb v Wombat Securities Pty Ltd (No 2) [2013] NSWSC 863 Harrison and Another v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 Miles v Doyle (No 2) [2021] NSWSC 1312 Category: Costs Parties: Paul John Miles (Plaintiff) Philip William Doyle (Defendant) Representation: Counsel: A Bailey (Plaintiff)

Solicitors: Carroll & O'Dea Lawyers (Plaintiff) Hall Partners (Defendant) File Number(s): 2018/204001 Publication restriction: Nil

REVISED EX TEMPORE Judgment 1. This matter comes before me today by way of a motion filed by the plaintiff dated 29 October 2021 seeking two orders being: 1. an order that the defendant pay the plaintiff's costs on an ordinary basis up to 5 July 2018 and on an indemnity basis from 6 July 2018; and 2. an order pursuant to r 36.16(1) of the Uniform Civil Procedure Rules 2005 (NSW) and s 98(4)(c) of the Civil Procedure Act 2005 (NSW) ("CPA"), that the Court make a gross sum costs order. 1. The plaintiff reads two affidavits from the solicitor for the plaintiff, Robert Andrew Algie, dated 29 October and 8 November 2021. 2. Mr Bailey of counsel appears for the plaintiff and Mr Hall, solicitor, appears for the defendant on the application. Mr Hall appeared for the defendant on the hearing. Mr Bailey provided extensive and helpful written and oral submissions. Mr Hall provided succinct submissions essentially accepting that an order for indemnity costs must be made having regard to the terms of the offers of compromise but disputing the plaintiff's entitlement to a lump sum gross costs order. 3. I entered judgment for the plaintiff on 15 October 2021 in the sum of $1,273,125. I ordered the defendant to pay the plaintiff's costs. [1] 4. By way of its motion the plaintiff seeks to vary that costs order. As set out in my judgment, I assessed damages in that amount including a sum for interest of approximately $200,000. As I recorded in that judgment, damages for sexual assault must be assessed at common law and not having regard to the damages restrictions set out in the Civil Liability Act 2002 (NSW). Interest was thus payable and the discount rate was 2.5% rather than 5%. It is not necessary that I further discuss the components of my damages assessment at this time. 5. The plaintiff made three offers. On 5 July 2018 the plaintiff served an offer of compromise in the sum of $830,000, then on 24 June 2019 the plaintiff served an offer in the sum of $680,000 and then on 22 April 2021 the plaintiff served an offer of $425,000. Plainly, the plaintiff did better than each of those offers. 6. The defendant appropriately did not wish to be heard on the issue of whether the plaintiff was entitled to indemnity costs. The defendant did not put before the Court any evidence to suggest that it would have not been reasonable for him to have accepted the first offer made by the plaintiff. 7. In reality, this case was very hard fought. It was extensively case-managed from the commencement of the proceedings. One of the principal reasons why it required such extensive case management was the refusal of the defendant to make appropriate concessions in his defence. Indeed, on my analysis of the documentation and the amendments to the defence even following my orders as to what should occur, the defendant continued to adopt a position which left the plaintiff uncertain as to what he had to prove. 8. The matter was originally listed for ten days on the basis that the plaintiff felt it necessary to call a number of witnesses as to the defendant's tendency involving sexual assault and young persons. It was not until more extensive case management closer to the hearing that the parties agreed that the matter could be shortened to five days on the basis that the plaintiff anticipated that it would be unnecessary to call such evidence. 9. Even on the first day of the hearing, the defendant sought to adduce evidence being statements from him and two witnesses in circumstances in which he had consistently maintained throughout the conduct of the proceedings that he would not be calling such evidence. 10. Further, of course, the defendant entered into bankruptcy some weeks or months before the hearing. 11. None of this is the responsibility of the current solicitor for the defendant. As pointed out in the submissions of Mr Bailey, the defendant retained a number of different law firms along the way. 12. In any event, I am satisfied that the order for indemnity costs sought by the plaintiff should be made having regard to the original offer of compromise. 13. In the circumstances, I order that the defendant pay the plaintiff's costs on an ordinary basis up to 5 July 2018 and on an indemnity basis from 6 July 2018.