Ciprijanovic v Schindler Lifts Australia Pty Ltd (No 2) [2013] NSWSC 505

Supreme Court New South Wales

Medium Neutral Citation: Ciprijanovic v Schindler Lifts Australia Pty Ltd (No 2) [2013] NSWSC 505 Hearing dates: 02/05/2013 Decision date: 02 May 2013 Before: Garling J Decision: 1.In respect of the claim between the plaintiff and the first defendant, I order each party to pay her and its own costs of the proceedings. 2.I order the plaintiff to pay the second defendant's costs of the proceedings. Catchwords: COSTS - order for costs in circumstances where plaintiff has discontinued proceedings - application for defendant to pay plaintiff's costs due to non-compliance with court orders - application to depart from general rule - no point of general principle Legislation Cited: Civil Procedure Act 2005 Uniform Civil Procedure Rules Cases Cited: Ciprijanovic v Schindler Lifts Australia Pty Ltd [2013] NSWSC 431 Category: Costs Parties: Andelija Cirpijanovic (P) Schindler Lifts Australia Pty Ltd (D1) South Western Sydney Local Health Service (Liverpool Hospital) (D2) Representation: Counsel: S Eistis (P) D Lloyd (D1) L Morgan (D2) Solicitors: The Compensation Recovery Lawyers (P) Wotton Kearney (D1) Moray & Agnew (D2) File Number(s): 2011/260544

EX TEMPORE Judgment 1In 2011 the plaintiff, Ms Ciprijanovic, commenced proceedings claiming damages for personal injury consequent upon an accident which was said to have occurred on 2 September 2008 in the course of her employment as a cleaner at the Liverpool Hospital. She alleged that the then sole defendant, Schindler Lifts Australia Pty Ltd, was negligent in their maintenance and upkeep of a lift which, whilst being used by the plaintiff, was said to have stopped 50 centimetres above the basement floor level, with the consequence that as the plaintiff left the lift, she fell to the ground and injured herself. 2It seems that proceedings were served in August 2011 and Schindler Lifts ultimately instructed solicitors in October 2011. Shortly after receiving instructions, the solicitors for the then sole defendant sent a request for particulars to the plaintiff of the Statement of Claim. Proceedings came before the Court on 17 November 2011. By that time the plaintiff had served a subpoena on Schindler Lifts, which was first returnable on 27 September 2011. For reasons which are wholly unexplained, there was no answer to that subpoena until 23 October 2012. 3When the matter was before the Court for directions on 17 November 2011, orders were made by the consent of the parties. At that time it was clear that the plaintiff wished to amend her Statement of Claim so as to join her employer, the legal entity responsible for the operation of Liverpool Hospital. Accordingly, it was agreed between the parties that Schindler Lifts would not file its Defence until a period of some weeks after the plaintiff had filed its Amended Statement of Claim. This was clearly sensible. As well, the parties agreed that Schindler Lifts would file its expert evidence by 1 June 2012. 4Proceedings were stood over to 15 May 2012 for further directions. 5On 15 May 2012 the time for the filing of the Amended Statement of Claim by the plaintiff, and the Defence by Schindler Lifts, was extended until, in the latter case, 5 June 2012. Schindler Lifts adhered to the extension, filing its Defence on 5 June 2012. The terms of that Defence have previously been discussed in my decision which was delivered earlier today: Ciprijanovic v Schindler Lifts Australia Pty Ltd [2013] NSWSC 431. Thereafter, Schindler Lifts was in significant default of Court orders. 6First, it was in default of production of the documents required on subpoena. Secondly, it was in default of two directions of the Court that it serve its expert evidence, firstly, by 1 June 2012 and, secondly, by 5 October 2012. Thirdly, it was in default of an order that it serve a Statement of Issues in dispute by 31 August 2012. Compliance with any of these orders, including the subpoena to produce documents, would undoubtedly have revealed the existence of facts recorded contemporaneously in a work lift ticket record, which were wholly inconsistent with the plaintiff's version of events. 7Those facts, and the significance of them, were not ultimately revealed in full until the service of an expert report by the first defendant in December 2012. The plaintiff, having consulted with her expert, concluded in January 2013 that whilst ever the first defendant's Defence stood, she could not continue to mount a viable claim. 8Since January 2013 there have been a series of interlocutory proceedings in which the plaintiff sought to strike out a part or parts of the first defendant's Defence and to have judgment entered in her favour against the first defendant. The plaintiff's alternative position was that she should be entitled to discontinue the proceedings. 9The second defendant, to which I will refer as the 'Hospital', was joined in the proceedings in May 2012, filed its Defence in July 2012 and otherwise participated without criticism in the interlocutory steps and procedures which were in place. 10On 28 March 2013 and on 10 April 2013 I heard a Notice of Notion filed on 19 March 2013 which sought orders to strike out paragraphs 5 and 6 of the Defence of the first defendant. On 10 April 2013, I dismissed the motion in which those orders which were being sought. On 2 May 2013 I published my reasons: Ciprijanovic v Schindler Lifts Australia Pty Ltd [2013] NSWSC 431. In short, I held that it was within the first defendant's discretion to plead a bare denial of the allegation made by the plaintiff of the specific cause of the lift failure and there was no basis for striking out the Defence. I noted, in delivering the judgment that, as it appeared to me, the real basis of the plaintiff's complaint was that at all relevant times she was unaware of the contents of the Schindler Lifts work ticket, that is the contemporaneous record demonstrating facts which suggested that the cause of the events which she had pleaded did not, and could not have occurred. 11I stood over to today the question of what order for costs ought to be made in light of the plaintiff's discontinuance of the proceedings on 17 April 2013, pursuant to the grant of leave by the Court on 10 April 2013. 12The plaintiff contends, so far as the first defendant is concerned, that each party should pay its own costs of the proceedings except for the period between 5 June 2012 and 15 January 2013 when, the plaintiff contends, the first defendant should pay her costs. The plaintiff seeks an order that she and the second defendant each pay their own costs of the proceedings. 13The first defendant opposes the plaintiff's order. In so doing, the first defendant does not oppose an order that the plaintiff and it pay its own costs of the entire proceedings. The first defendant submits in the alternative that the Court ought make an order that the plaintiff pay its costs of the entire proceedings except for the period between 5 June 2012 and 25 October 2012 when it accepts that the Court could order the first defendant to pay the plaintiff's costs. The first defendant does not advance that formula of a costs order with any enthusiasm, because it recognises that such an order would have the effect of requiring both the plaintiff and it to incur further legal costs in order to resolve the costs dispute. Hence, the first defendant submits, as a practical and realistic alternative which comports with s 56 of the Civil Procedure Act 2005, the most just, quick and cheap way of disposing of the question of costs is to order each party to pay its own costs. 14The plaintiff recognises the undesirability of putting the parties in a position where they each have to incur further costs to sort out any order which this Court might make and accepts that if the Court came to the view that costs ought be ordered in the way the first defendant contends in its alternative formulation, then the more efficient and better course is for the Court to order each party to pay its own costs. However, the plaintiff maintains that an order should be made as she has originally sought. 15Rule 42.19 of the Uniform Civil Procedure Rules provides that in proceedings where a plaintiff has discontinued the claim pursuant to r 12.1, as has occurred in this case, then unless the Court otherwise orders, the plaintiff must pay the defendant's costs. The question then for this Court is whether it should otherwise order. 16The position of the plaintiff and the second defendant can be dealt with shortly and promptly. There is simply no basis at all advanced which would allow this Court to make any order for the proceedings between the plaintiff and the second defendant other than that the plaintiff pay the second defendant's costs. There is nothing extraordinary about the litigation. The second defendant has not been demonstrated to be relevantly in default of any provision or order. At best it is said by the plaintiff that the second defendant could have, but did not, obtain expert evidence which may have, but did not, reveal the true facts of what occurred. 17This is a wholly unpersuasive submission and there is simply no reason at all advanced which could justify the exercise of the Court's discretion to make any order as to costs other than that the plaintiff pay the second defendant's costs, and that order will be made in due course. 18So far as the position against the first defendant is concerned, there is no doubt at all that the unexplained failure of the first defendant to comply with orders of the Court and to comply with the subpoena is conduct of a kind which would warrant a Court exercising a discretion with respect to costs contrary to the usual procedure. It is the duty of parties and their lawyers to comply with the Court's directions and not to disregard them. 19The context of this case is that it was not until late 2012, at a time when the first defendant finally complied with a subpoena which had been served over 12 months earlier and finally served an expert report - having failed to comply with two orders of the Court so to do - that the true facts were revealed. They were not revealed earlier in the defence, nor were they revealed in any exchange of correspondence. It was entirely a matter for the first defendant as to when those facts were revealed in a Defence or in correspondence, but it was not a matter for the first defendant to ignore the subpoena which it received or the Court's orders about obtaining and filing expert evidence. This conduct merits the Court making an order that the first defendant pay all of the costs of and associated with those serial defaults. It would justify this Court making an order that for the period between 5 June 2012 to the end of December 2012, the first defendant should pay the plaintiff's costs. 20For the periods before and after that period which I have just nominated, there is nothing about the conduct of this litigation which would merit an order other than that the plaintiff pay the first defendant's costs. Prior to June 2012, the matter proceeded by agreement and in accordance with the usual practice of litigation in this Court. There was no conduct by the first defendant which induced the plaintiff to commence proceedings. Nor was there any conduct by the plaintiff in which it sought to ascertain facts and circumstances prior to commencement of proceedings which were not forthcoming, leaving her with no alternative but to commence proceedings. Equally, during 2013 the plaintiff has taken steps in the litigation which have been largely unsuccessful and which would ordinarily result in an order for costs being made against the plaintiff. 21So I am left in the position where, by proper application of the discretion of the Court, the appropriate order is to order the plaintiff to pay the first defendant's costs of the proceedings except for the period between June 2012 and the end of December 2012 when it would be appropriate for the first defendant to pay the plaintiff's costs. However, as has been earlier identified in the course of these reasons, such a course would involve both parties in ongoing costs and expenses. It would lead to ongoing dispute and the incurring of, what seems to me to be likely to be, costs out of all proportion to what has happened so far. 22In all of the circumstances, having regard to the application of the overriding purpose of the Civil Procedure Act which justifies the exercise of my discretion to order that as between the plaintiff and the first defendant, each party is to pay her and its own costs of the proceedings. That seems to me to be an order which is in the interests of justice, avoids further delay and expense and broadly does justice between the parties. It is an order which is not opposed by the first defendant and it is an order which the plaintiff accepts is one reasonable way in which the Court can resolve the outstanding claims for costs. 23Accordingly, I make the following orders: (1)In respect of the claim between the plaintiff and the first defendant, I order each party to pay her and its own costs of the proceedings. (2)I order the plaintiff to pay the second defendant's costs of the proceedings.