Brittain v Commonwealth of Australia [No.2] [2006] NSWSC 528

New South Wales Supreme Court

CITATION : Brittain v Commonwealth of Australia [No.2] [2006] NSWSC 528

HEARING DATE(S) : 19/5/06

JUDGMENT DATE : 5 June 2006

JUDGMENT OF : Bell J at 1

DECISION : The defendant is to pay the plaintiff's costs of the application for an extension of the limitation period which were reserved by Master Malpass on 27 July 2000

CATCHWORDS : Costs

Civil Procedure Act 2005 LEGISLATION CITED : Supreme Court Rules 1970 Uniform Civil Procedure Rules 2005

Commonwealth of Australia v Smith [2005] NSWCA 478 CASES CITED : Follent v Commonwealth of Australia [2000] NSWSC 674 Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116 Williams v Minister, Aboriginal Land Rights Act 1983 (1994) 35 NSWLR 497

PARTIES : Anthony Winston Brittain (Plaintiff) Commonwealth of Australia (Defendant)

FILE NUMBER(S) : SC 21248/95

COUNSEL : G Melick SC (Plaintiff) R Williams QC / I McLachlan (Defendant)

SOLICITORS : James Taylor & Co (Solicitors) (Plaintiff) Australian Government Solicitor (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

BELL J

Monday 5 June 2006

21248/95 Anthony Winston Brittain v Commonwealth of Australia

JUDGMENT - Re: Costs 1 BELL J: On 27 July 2000 Master Malpass made orders extending the limitation period in these proceedings up to and including 29 November 1995. His Honour reserved the question of costs. 2 The proceedings came on before me for hearing. On 6 December 2005 I gave judgment for the plaintiff. On 16 December I made consequential orders dealing with the costs of the proceedings and interest. The parties sought to have the queston of the costs that had been reserved by Master Malpass stood over to be determined at a later time. 3 On 19 May 2006 I heard submissions on the question of the reserved costs. Mr Melick SC, who appeared on the plaintiff's behalf, read paragraphs 33 and 34 of the affidavit of James Taylor, sworn on 13 December 2005 in support of his application (that the defendant pay the plaintiff's costs of the extension application). Mr Taylor set out details of the cases in which the Court has made orders that the costs of the extension application brought by a member of the crew of the Melbourne in respect of a claim for personal injury arising out of the collision be costs in the cause and those cases in which the costs of the extension application have been reserved and in which the defendant has paid the costs of the extension application when "the costs issues settled". There was a question concerning the accuracy of the material contained in these two paragraphs of Mr Taylor's affidavit and Mr Melick drew my attention to the contents of a letter dated 5 September 2005 prepared by the Australian Government Solicitor's office, inviting me to rely on the latter to the extent of any inconsistency.