Marshall v O'Flaherty (Costs) [2023] NSWDC 61

District Court New South Wales

Medium Neutral Citation: Marshall v O'Flaherty (Costs) [2023] NSWDC 61 Hearing dates: 16 March 2023 Date of orders: 17 March 2023 Decision date: 17 March 2023 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Defendant's application to set aside order (3) of the orders made by Taylor SC DCJ on 25 October 2022 is dismissed. (2) The costs of this application are to be included in the costs order of 25 October 2022 when these costs come to be agreed or assessed. Catchwords: COSTS – plaintiff brings applications for leave to commence proceedings in the District Court of NSW pursuant to s 26(3) of the Personal Injury Commission Act 2020 (NSW) and to commence proceedings out of time pursuant to s 109 of the Motor Accident Compensation Act 1999 (NSW) – applications granted – orders for costs to be costs in the proceedings but with liberty to apply – defendant seeks orders that the plaintiff pay the defendant's costs – the "indulgence principle" – role of any "indulgence" factors in the exercise of the court's discretion – relevance of combative opposition to the orders sought by the plaintiff – degree of weight to be given to orders proposed by the judge hearing the application, who had the benefit of written submissions on costs – whether any new or different costs factor identified – application to vary costs order dismissed. Legislation Cited: Motor Accident Compensation Act 1999 (NSW), s 109 Personal Injury Commission Act 2020 (NSW), s 26 Workers Compensation Act 1987 (NSW), s 151D Cases Cited: Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 Choukor v Spiroski (No 2) [2017] NSWDC 15 Fordham v Fordyce [2007] NSWCA 129 Franco v Workers Compensation Nominal Insurer [2020] NSWSC 915 Halikos Hospitality Pty Ltd & Ors v Inpex Operations Australia Pty Ltd [2017] NTSC 17 Holt v Wynter (2000) 49 NSWLR 128; [2000] NSWCA 143 Judd v Warwick (Costs) [2007] NSWDC 300 Muriniti v Kalil [2022] NSWCA 109 Rafiqi Islam v Transport Accident Commission of Victoria and Heather Worldon v Transport Accident Commission of Victoria [2022] NSWDC 582 Seary v White (No 5 - Costs) [2008] NSWDC 21 Smith v Grant (2006) 67 NSWLR 735 Stanley v Layne Christensen Company [2006] WASCA 56 Stein v Ryden [2022] NSWCA 212 The President's Club Limited & Anor v Palmer Coolum Resort Pty Ltd & Anor (No 2) [2020] QSC 11 Wang v ABC Homes (NSW) Pty Ltd (No 2) [2018] NSWSC 1736 Texts Cited: Nil Category: Costs Parties: Phillip Kenneth Marshall (plaintiff) Thomas O'Flaherty (defendant) Representation: Counsel: Mr B Kelleher SC (plaintiff) Mr B Jones (plaintiff)