LOLOMANAIA v. ROADS & TRAFFIC AUTHORITY [2000] NSWSC 780

New South Wales Supreme Court

CITATION : LOLOMANAIA v. ROADS & TRAFFIC AUTHORITY [2000] NSWSC 780 CURRENT JURISDICTION: Civil FILE NUMBER(S) : SC No. 11135 of 1990 HEARING DATE(S) : 9 June 2000 JUDGMENT DATE : 8 August 2000

PARTIES : KEPUELI TAUFUI LOLOMANAIA v. THE ROADS & TRAFFIC AUTHORITY OF NEW SOUTH WALES JUDGMENT OF : Greg James J at 1

COUNSEL : Plaintiff: J. Coombs, QC./P.J. Doherty Defendant: D. Nock, SC. SOLICITORS : Plaintiff: Bond & Bond Defendant: Hunt & Hunt CATCHWORDS : Costs - personal injuries - indemnity costs - verdict more favourable than offers and arbitration award - all matters in issue at trial - limited probability of party initiating re-hearing obtaining more favourable result - consideration of principles. Huntsman Chemical Co. Australia Limited v. International Pools Australia Limited (1995) 36 NSWLR 242 Qantas Airways Limited v. Dillingham Corporation & Ors (Rogers, J., unreported 14 May 1987) CASES CITED : Oshlack v. Richmond River Council (1998) 193 CLR 92 Wentworth v. Rogers [1999] NSWCA 403 Rouse v. Shepherd (No. 2) (1994) 35 NSWLR 277 DECISION : Costs to the plaintiff on an indemnity basis

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

No. 11135 of 1990

GREG JAMES, J. TUESDAY 8 AUGUST 2000

KEPUELI TAUFUI LOLOMANAIA v. THE ROADS & TRAFFIC AUTHORITY OF NEW SOUTH WALES

JUDGMENT (On application for costs)

1 HIS HONOUR: On 9 June 2000 after I had already indicated on 7 June 2000 to the parties my findings on the issues of both liability and damages, subject to outstanding matters involving adjustment of the precise figures, and after I had dealt with those matters, I entered a verdict for the plaintiff in the sum of $944,357.50 and gave judgment accordingly. It was at that time that an application was made for indemnity costs by counsel appearing for the plaintiff. 2 I ordered that the defendant pay the plaintiff's costs, but reserved the question of whether the costs should or should not be indemnity costs. I stayed the judgment on terms that I had intimated on 7 June 2000 when application was foreshadowed on that day for a stay when the judgment was given. 3 No notice had been given of the application for indemnity costs nor had any formal motion been filed. I reserved the question to permit the parties to provide written submissions. Those submissions have now been received. 4 The defendant has objected to the application being entertained on the basis that the judgment had been concluded:- "… there is no application before the court and that your Honour should not contemplate such an application. The defendant would suggest that your Honour is functus in respect of those matters." 5 Insofar as a Supreme Court judge could ever be "functus" (by this I understand the submission to mean that I am precluded from continuing with or re-opening any final decision) it is clear that at no time had there been any question arise as to the extent of, nor examination of the nature of, the costs that were sought by the plaintiff nor any suggestion by either party up to that point of time that the costs order would be other than as would follow the event. It was clear enough, and no specific submissions were made or necessary on the question, that the general liability for costs would follow the event. The extent of the verdict could not have been known earlier than 7 June and in the judgment I had foreshadowed on that day and delivered on 9 June, the nature and extent of the costs had not been dealt with at all, although the liability for them had been. Attention not having been specifically directed to costs, it is not surprising that the issue of what costs was not raised nor dealt with. I do not see therefore that the nature and extent of costs had been dealt with finally. 6 It is the quantum of the verdict that triggers the application. The application was made at the time at which that quantum was fixed. I do not see that the plaintiff is prevented from raising that matter when he did. I do not see myself precluded as a matter of law from considering the question of indemnity costs raised, as it was, and at the time that it was. Of course when I turn to the question of the exercise of my discretion I shall have regard to the conduct of the litigation generally and also I shall have regard particularly to the circumstances in which the issue of indemnity costs was raised. 7 The plaintiff, in seeking indemnity costs, refers to s.76:- "(1) Subject to this Act and the rules and subject to any other Act:- (a) costs shall be in the discretion of the court; (b) the court shall have full power to determine by whom and to what extent costs are to be paid; and (c) the court may order costs to be assessed on the basis set out in Division 6 of Part 11 of the Legal Profession Act 1987 or on an indemnity basis." 8 No evidence has been formally put forward in support of the application, but the parties have been able to reach agreement in their written submissions on fact and the applicable law. Both parties in their written submissions indicated that no further hearing was necessary and that I should proceed on the basis of their arguments, as set out in those submissions. Those submissions will be placed on the file. 9 The facts which are accepted are as follows:- "1. On 14 June 1994, the defendant served an offer of compromise in the sum of $95,000 plus workers compensation (then about $45,000) plus costs. 2. On 15 July 1994, the plaintiff received an award of $410, 381.43 from an arbitrator. This amount included approximately $45,000 received by way of workers compensation. 3. The plaintiff did not apply for a re-hearing. The defendant did. 4. Five years later, the re-hearing was listed to commence on 19 July 1999. 5. By letter dated 20 July 1999, the defendant offered $300,000 clear of workers compensation plus costs. This offer was open for 24 hours. 6. By letter dated 22 July 1999, the defendant offered $350,000 clear of workers compensation plus costs (open until 23 July 1999). 7. The plaintiff did not make any offer to the defendant. 8. Liability was never admitted. 9. The plaintiff received judgment for $944,357 clear of workers compensation." 10 In addition, the defendant points out that no offers were made by the plaintiff in attempting to settle the case. Further, the defendant points out that after the arbitration, the plaintiff's case changed in that:-