Searle v Commonwealth of Australia (No.11) [2024] NSWSC 1623

Supreme Court New South Wales

Medium Neutral Citation: Searle v Commonwealth of Australia (No.11) [2024] NSWSC 1623 Hearing dates: On the papers Date of orders: 20 December 2024 Decision date: 20 December 2024 Jurisdiction: Common Law Before: Garling J Decision: (1) Order that the defendant, the Commonwealth of Australia, to pay the plaintiff's costs of and incidental to the Notice of Motion filed 12 August 2024. Catchwords: COSTS – Party/party – Costs orders in interlocutory proceedings – Defendant to pay the plaintiff's costs. Legislation Cited: Uniform Civil Procedure Rules 2005 Cases Cited: Searle v The Commonwealth of Australia [2018] NSWSC 105 Searle v Commonwealth of Australia (No 9) [2023] NSWSC 215 Searle v Commonwealth of Australia (No.10) [2024] NSWSC 1275 Texts Cited: Not applicable Category: Costs Parties: Clayton William Searle (P) Commonwealth of Australia (D) Representation: Counsel: N Kidd SC / D Meyerowitz-Katz (P) L Gyles SC / S Keizer (D)

Solicitors: Levitt Robinson Solicitors (P) McCullough Robertson Lawyers (D) File Number(s): 2016/45027 Publication restriction: Not applicable

Judgment 1. On 24 September 2024, I heard and dealt with a Notice of Motion filed by the Commonwealth, seeking rulings with respect to its ability to rely upon various documents which had been produced for the purposes of a hearing of the reference in the matter and, in the alternative, the amendment of its Defence which it had filed. 2. For the reasons which I gave: Searle v Commonwealth of Australia (No.10) [2024] NSWSC 1275, I held that the Commonwealth was not able to rely upon such part of the Statement of Contention which it had served in respect of each claimant by which it raised a failure to mitigate losses on the part of the claimant. 3. In light of the conclusions reached, I formed the view that it was not an appropriate course for the Commonwealth to have leave to file any amended Defence. 4. After the delivery of the ex tempore reasons, at my invitation, the parties conferred and agreed on a set of orders which gave effect to my decision. Those orders were made and the Commonwealth's Notice of Motion was otherwise dismissed. 5. The parties were given leave to file submissions with respect to costs. 6. This judgment deals with the issue of costs of the Commonwealth's Notice of Motion filed 12 August 2024.