Spaulding v Commonwealth of Australia (No. 2) [2006] NSWSC 81

New South Wales Supreme Court

CITATION : Spaulding v Commonwealth of Australia (No. 2) [2006] NSWSC 81

HEARING DATE(S) : Written submissions

JUDGMENT DATE : 27 February 2006

JUDGMENT OF : Bell J at 1

DECISION : Costs are to be costs in the cause

CATCHWORDS : Costs judgment

Civil Procedure Act 2005 Limitation Act 1969 (NSW) LEGISLATION CITED : Motor Accidents Act 1988 Supreme Court Rules 1970 Uniform Civil Procedure Rules 2005

Donald Campbell & Co Ltd v Pollak [1927] AC 732 CASES CITED : Commonwealth of Australia v Smith [2005] NSWCA 478 Hally v Dennis (1955) 95 CLR 661 Holt v Wynter [2000] NSWCA 143; 49 NSWLR 128

PARTIES : Barry Thomas Edward Spaulding (Plaintiff) Commonwealth of Australia (Defendant)

FILE NUMBER(S) : SC 20768/01

COUNSEL : John Sharpe (Plaintiff) G Laughton SC / D Brogan (Defendant

SOLICITORS : Hollows Solicitors (Plaintiff) Australian Government Solicitor (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

BELL J

27 February 2006

20768/01 Barry Thomas Edward Spaulding v Commonwealth of Australia (No. 2)

JUDGMENT – on costs 1 BELL J: On 10 February 2006 I made an order pursuant to s 60G(2) of the Limitation Act 1969 (NSW) extending the limitation period for the cause of action in these proceedings. The parties were given leave to make submissions concerning the costs of the application. I have subsequently received written submissions from each of the parties. Neither of the parties sought to have the proceedings re-listed for oral submissions on this issue. 2 The application was filed on 12 September 2001. A number of the submissions filed on the plaintiff's behalf refer to the provisions of Pt 52A of the Supreme Court Rules 1970 (the SCR). The proceedings were determined after the commencement of the Civil Procedure Act 2005 (the CPA) and the Uniform Civil Procedure Rules 2005 (the UCPR). 3 Provision is made for the Court to make orders dispensing with the requirements of the UPCR (including with respect to orders for costs) in a case in which proceedings were commenced before commencement of the CPA (Cl 5(2) of Sched 6). 4 Where anything has been begun before the commencement of the CPA under a provision of the old legislation for which there is a corresponding provision in the CPA the proceedings may be continued and completed under the old legislation as if the CPA had not been enacted (cl 10 of Sched 6). 5 The plaintiff's submissions did not address the provisions of the CPA or the UCPR and were directed to the reasons why Pt 52A r 17 of the SCR is not of application to proceedings for an extension of the limitation period: Commonwealth of Australia v Smith [2005] NSWCA 478. 6 Neither party invited me to approach the matter on the basis that the general saving provisions of Sch 6 cl 10(a) or (b) are of application. Neither party invited me to make orders dispensing with the requirements of the UCPR pursuant to Sch 6 cl 5(ii). I deal with the determination of costs pursuant to the provisions of the CPA and the UCPR.