Prouse v State Rail Authority of NSW [2003] NSWSC 999

New South Wales Supreme Court

CITATION : Prouse v State Rail Authority of NSW [2003] NSWSC 999 HEARING DATE(S) : 22 October 2003 JUDGMENT DATE : 22 October 2003 JURISDICTION: Common Law JUDGMENT OF : Michael Grove J at 1 DECISION : No order for costs thrown away as a result of adjournment

CATCHWORDS : COSTS - RESERVED COSTS - JUDGMENT "WITH COSTS" - WHETHER INCLUDED - ADJOURNMENT - BURDEN OF COSTS IN PARTICULAR CIRCUMSTANCES CASES CITED : How v Earl Winterton 1904 WN 204 PARTIES : Jason Scott Prouse v State Rail Authority of New South Wales FILE NUMBER(S) : SC 20881/94 COUNSEL : R. Quickenden (Plaintiff) N. Polin (Defendant) SOLICITORS : Phillips Fox (Plaintiff) Gillis Delaney Brown (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MICHAEL GROVE J

Wednesday 22 October 2003

20881/94 - JASON PROUSE v STATE RAIL AUTHORITY OF NEW SOUTH WALES

JUDGMENT 1 HIS HONOUR: On 15 November 1991 Jason Scott Prouse came into contact with a moving train near Newcastle station. The most obvious injuries which he sustained included amputation of one each of his upper and lower limbs. 2 He brought action against the State Rail Authority seeking damages for negligence and, as his case was pleaded, also for breach of terms of the contract of carriage into which he had entered as a passenger in a train other than the one which struck him. 3 The matter was listed before me today in order to deal with a motion seeking that certain costs be paid personally by the solicitors for the plaintiff. As events have transpired I have heard argument otherwise before reaching that motion and it is appropriate to record what has occurred. 4 The action was listed for hearing following a List Judge's callover on 26 March 2001, scheduled then to commence on 30 July of that year. The allocated judge was Dowd J. On the first day of hearing application was made to amend the Statement of Claim to add two further particulars of negligence. These particulars alleged failure by the guard or the driver of a train from which the plaintiff was alighting to warn the guard or driver of the oncoming train which struck the plaintiff that there were passengers alighting; and the second additional particular related to failure of the guard or driver of the train from which the plaintiff alighted that there were passengers getting off it. A warning, it was alleged, should have been given to personnel at either Newcastle railway station or in the signal box. 5 That this amendment was desired to be made was indicated in correspondence by the plaintiff's solicitors to the defendant's subsequent to the listing hearing but some weeks prior to the scheduled commencement of hearing. It was suggested by the defendant that the plaintiff should adjourn the hearing. This did not take place and there was argument before Dowd J as the trial judge. 6 He permitted the amendment and published his reasons for that ruling. I do not recite the entirety of his reasons but, given the facts and circumstances, I can well understand his comment that it appeared to him quite extraordinary that the defendant hadn't sought to meet what was involved in this application as part of its preparation. Indeed there is material available to be looked at for present purposes which suggests that the amendment was provoked by an appreciation gained by counsel concerning the significance of material which emanated from the defendant itself. 7 That ruling provoked an application for adjournment by the defendant which was on 30 July 2001 refused. Again his Honour gave reasons for that refusal. By this time there had arisen issues between the parties concerning the extent of particulars of injury and damages claimed by the plaintiff. The application for adjournment was renewed on 1 August and on this occasion his Honour vacated the hearing. 8 Of particular concern was information by way of particulars that the plaintiff was injured by fracture of the ankle in his sole remaining leg. It appears that until amended particulars were filed those which were on the file as at the callover date were some five years old. 9 However, in response to an application for order for costs thrown away by reason of the adjournment, which application I infer was made on behalf of the defendant, his Honour expressed the view that the costs should be reserved to be dealt with by the trial judge. In so doing, his Honour observed: "On the previous occasion I had reserved costs. To a large extent the costs the result of this adjournment application has been occasioned by the order I made on Monday. I think, therefore, that both matters should be the subject of one adjudication." 10 The action ultimately came to a trial before Newman AJ and was heard between 22 April and 2 May 2002. On 3 June 2002 his Honour directed judgment for the defendant "plus costs". His Honour published reasons for his judgment. I am informed by counsel appearing today that no formal minute of judgment has yet been taken out. 11 Although, as I have indicated, the matter was before the Court today for the purpose of a motion seeking the plaintiff's solicitors pay the costs thrown away by reason of the adjournment in mid 2001 pursuant to Pt52 r66, an argument between the parties arose as to whether that could be dealt with in the absence of some order in respect of those costs. 12 I record that the matter of the availability or otherwise of Newman AJ and Dowd J was raised but it was, as I understand it, the desire of both parties that the matter proceed before me now rather than accumulate further costs. 13 The first question to be raised was whether or not the expression by Newman AJ "plus costs" had the effect of ordering the plaintiff to pay the costs reserved by Dowd J. There was no formal proceeding before me to enable that determination but by consent of the parties I dispensed with the requirement to file a motion seeking to determine that question and, if appropriate, to further determine the issue of the costs reserved by Dowd J. 14 By agreement of the parties, affidavits which were intended to be used in support of and against the orders sought in the motion against the solicitors have been treated as available for the purposes of the ore tenus motion. 15 As has been pointed out in helpful exchanges between the bench and counsel, it is conventional to indicate when making an order for costs at the conclusion of litigation to indicate whether such an order includes or excludes costs of interlocutory applications and/or costs earlier reserved. That this should be done is demonstrated in the judgment of Kekewich J in How v Earl Winterton 1904 WN 204. In that case an argument revolved around whether or not a Taxing Officer of the Court could include in his assessment costs which had been reserved. His Lordship said amongst other things: "When costs were reserved it was necessarily implied that there was reserved the question of the incidence of those costs quite apart from the question whether they were to be paid by the plaintiff or by the defendant. It was impossible for the Taxing Master dealing with costs to look at any costs which had been reserved." 16 That expression of the law is compatible with what I have described as the conventional practice. I do not regard the expression by Newman AJ "plus costs" as including the costs reserved by Dowd J. 17 That leads me then, therefore, to the second issue on the motion which I have deemed to be before the Court. The defendant argues that it was virtually inevitable that there be an order for costs in its favour. It has been pointed out by counsel appearing for the solicitor respondent to the motion which was formally listed today that the plaintiff himself has no express notice of the intention of the defendant to seek an order for what might be regarded as additional costs other than those ordered by Newman AJ against him. I indicated that my view would be that, if necessary, leave could be granted to the plaintiff to apply as he may be advised. 18 I turn, therefore, to the issue of the costs of the adjourned hearing. I am unpersuaded that it necessarily follows that an order for costs almost inevitably would have been made in favour of the defendant. If the matter was as clear as that I would have anticipated that Dowd J would have made the order. I assume that he reserved the question of costs because he regarded it as possible that the events of the litigation (that is, as matters ultimately turned out) might be regarded as having some bearing upon where the burden of those costs should lie. 19 Let me turn to the issue of expert evidence. Fairly early in the piece in terms of the conduct of this litigation the plaintiff had acquired a report from a Professor Johnson. It was served on the defendant. Questions were raised concerning whether or not the defendant required him to be present for cross-examination. Information was conveyed regarding his unavailability during the time set aside for the hearing. When the amendment which constituted the third amended Statement of Claim was put before the Court it was indicated by Senior Counsel for the defendant that inquiries and other steps needed to be taken in order to meet the new particulars. Those inquiries would include consulting an expert. A Mr Cowling's name came to be known but it appears that in the event, that is to say the hearing before Newman AJ which was, of course, conducted in the light of the amended particulars of negligence, the defendant did not call Mr Cowling or any similarly qualified expert. 20 A second matter of contention arose out of the amended particulars which were produced as a result of directions by Dowd J. There is exhibited to one of the affidavits to which I have had reference, namely, the affidavit of Amanda Bond sworn 1 August 2001, a copy of the fresh particulars, the additional matters being indicated by underlining. I have already made some reference to the concern that his Honour felt about the information concerning the plaintiff's ankle. 21 I do not set out the new particulars which are alphabetically indexed from J to DD. They commence with "pain to lower back" and finish with "loss of sensation to the area of the upper right inner leg." There are references throughout to phantom pains and the like. 22 As I have indicated, the plaintiff was and is a double amputee and I regard it as almost captious for a defendant to suggest that the sort of generalities that are set out from J to DD as well as the sort of specificities that therein are matters which would take it by surprise in litigation of this nature. 23 It is submitted on behalf of the defendant that its suggestion to the plaintiff prior to the hearing, that if it wanted to amend its pleading and/or particulars it should then and there apply for an adjournment, would have avoided the waste of costs in the hearing before Dowd J that was aborted. 24 Of course given the result of the litigation I am not in a position to make any observation as to what, if any, effect a change in the claim for damage had to the conduct of the litigation. As I have indicated, Dowd J was obviously unpersuaded that on the information before him it would necessarily follow that the plaintiff, who had made the amendments, should bear the costs of the adjournment which was ordered on the application of the defendant. 25 It seems to me that there are matters to be weighed on both sides. Indeed, his Honour indicated as much in the course of his judgment. 26 The conclusion that I have reached is that the parties should bear each of them their own costs as a result of the incomplete excursion before Dowd J. 27 I specifically order, therefore, that in respect of the costs reserved by Dowd J on 30 July and 1 August that there be no order as to costs. The consequence of that would be to render the current motion without consequence. 28 The current motion is dismissed. 29 It has been submitted that in the circumstances there should be no order for costs of the motion which brought the matter before the Court today. In any event, counsel for the plaintiff has argued that the defendant has been on notice of its position for some time that the motion was misconceived. As to the latter, I have not entered upon argument concerning that. I can observe, however, that neither did the respondent to the motion take any steps to indicate the argument which was raised this morning beyond the notice in January this year. By steps I mean formal steps rather than informal notification. 30 Given the whole of the circumstances, whilst not for the reason submitted on behalf of the defendant namely what was described as the spirit of the matter, I am of the view that the justice between the parties would best be served by making no order for costs of the motion which I have already dismissed. I decline accordingly to make such order. **********