New South Wales Supreme Court CITATION : Thomas v Shaw [No 2] [2009] NSWSC 718 16/2/09 - 20/2/09 HEARING DATE(S) : 30/3/09 26/6/09 24/7/09 JUDGMENT DATE : 30 July 2009 JURISDICTION : Common Law Division JUDGMENT OF : Kirby J DECISION : I vacate order (2) made on 26 June 2009 and, in lieu thereof, I order that the defendants pay the plaintiff's costs on an ordinary basis up to and including 24 November 2008, and thereafter on an indemnity basis. CATCHWORDS : CIVIL LAW - Practice and Procedure - indemnity costs LEGISLATION CITED : Uniform Civil Procedure Rules 2005 CATEGORY : Consequential orders Maitland Hospital v Fisher [No 2] (1992) 27 NSWLR 721 CASES CITED : Morgan v Johnson (1998) 44 NSWLR 578 Van Doore v Mendez & Ors [No 2] (unreported, Supreme Court, 30.6.1997) Dr Peter Locke v Dr Colin ova [2005] NSWSC 799 Cameron Brock Thomas (by his tutor Doreen Thomas) (Pl) PARTIES : William Richard Shaw (1st Def) Susan Joyce Shaw (2nd Def) FILE NUMBER(S) : SC 2008/20166 COUNSEL : R Royle (Pl) N Polin (Defs) SOLICITORS : Slater & Gordon (Pl) Moray & Agnew (Defs) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION KIRBY J Thursday 30 July 2009 2008/20166 Cameron Brock THOMAS (by his tutor Doreen Thomas) v William Richard SHAW and Susan Joyce SHAW JUDGMENT [No 2] – Indemnity costs 1 KIRBY J: On 26 June 2009, I gave judgment for the plaintiff in which I made the following orders: 1. There should be a verdict for the plaintiff in the sum of $853,396, subject to order (3) below. 2. The defendants should pay the plaintiff's costs. 3. I give the parties leave to mention the matter within 14 days in respect of funds management and interest. 2 Upon publishing my reasons, counsel for the plaintiff made application under Uniform Civil Procedure Rules 2005 42.14 for indemnity costs. On 22 November 2008, the plaintiff made a formal Offer of Compromise in the sum of $450,000 plus costs. The offer was not accepted. Written submissions were furnished, setting out the basis of the application. 3 The solicitors then appearing for the defendants asked that the issue be deferred until Mr Polin of counsel was present, he having represented the defendants throughout the trial. The matter was stood over until 24 July 2009. 4 On that day, Mr Polin of counsel appeared. On the issue of indemnity costs the following exchange took place: (T 2) "HIS HONOUR: ... Maybe we can deal with the issue of indemnity costs today, if you are ready to deal with that? POLIN: I think I am. I am probably not going to take a lot of time on that – I won't take a lot of time on that, your Honour. HIS HONOUR: No. It seems to me on ordinary principles the plaintiff should have indemnity costs. POLIN: The only things I can point to, in terms of the timing of the Offer of Compromise and material provided after, there is an Amended Statement of Claim, an Amended Statement of Particulars and also, I think, the plaintiff's second expert report. Your honour might look at those. I must say, I don't think there is anything terribly persuasive. I can say that suggests that any of those documents would have had a very significant impact on the position post the Offer of Compromise, but - " 5 I have examined the court file. The matter began in the District Court and was later transferred to the Supreme Court. The Statement of Particulars filed in the District Court on 23 March 2007 alleged a severe brain injury. It was alleged that the plaintiff would always be severely handicapped on the open labour market and had a significantly reduced capacity to earn. He would require assistance and care for 20 hours per week. 6 On 13 February 2009, shortly before the trial began (16.2.09), Amended Particulars were filed. They did not significantly enlarge the plaintiff's claim. Indeed, in many cases they appeared simply to restate in different terms (no doubt drawn from the medical reports) many of the disabilities which had already been recited. For instance, the original particulars alleged mood swings, whereas the amended particulars added "emotional lability". The original particulars alleged episodes of rage. The amended particulars added "anger". Likewise, the expert evidence does not alter the nature of the claim. 7 Here the verdict awarded to the plaintiff was significantly more favourable than the offer of compromise. On ordinary principles, it seems to me appropriate that the defendants should pay costs on an indemnity basis (Maitland Hospital v Fisher [No 2] (1992) 27 NSWLR 721 at 724; Morgan v Johnson (1998) 44 NSWLR 578 at 581, per Mason P). The late amendments did not, in my view, significantly alter the plaintiff's claim (cf Dunford J in Van Doore v Mendez & Ors [No 2] (unreported, Supreme Court, 30.6.1997); Dr Peter Locke v Dr Colin Bova [2005] NSWSC 799). 8 I therefore make the following order: I vacate order (2) made on 26 June 2009 and, in lieu thereof, I order that the defendants pay the plaintiff's costs on an ordinary basis up to and including 24 November 2008, and thereafter on an indemnity basis. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.