Hamilton v State of New South Wales [No 2] [2013] NSWSC 1533

Supreme Court New South Wales

Medium Neutral Citation: Hamilton v State of New South Wales [No 2] [2013] NSWSC 1533 Hearing dates: Written submissions Decision date: 22 October 2013 Before: Bellew J Decision: 1. The plaintiff is to pay the defendant's costs of the notice of motion. Catchwords: PRACTICE AND PROCEDURE - Legislation Cited: Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules (NSW) Evidence Act 1995 (NSW) Cases Cited: Hamilton v State of New South Wales [2013] NSWSC 1437 Oshlack v Richmond River Council (1998) 193 CLR 72 Category: Costs Parties: Thomas David Hamilton - Plaintiff State of New South Wales - Defendant Representation: Mr D Morgan - Plaintiff Mr S Woods - Defendant Garling Lawyers - Plaintiff Makinson & d'Apice Lawyers - Defendant File Number(s): 2012/185616 Publication restriction: Nil

Judgment

Introduction 1In this matter the defendant sought an order pursuant to rule 23.4 of the Uniform Civil Procedure Rules requiring the plaintiff to undergo an MRI scan of the brain. 2On 30 September 2013 I determined that the defendant was entitled to the order sought (see Hamilton v State of New South Wales [2013] NSWSC 1437). When the matter came before me on 4 October 2013 I made orders accordingly. At their request, I provided the parties with an opportunity to make submissions on the issue of costs. This judgment deals with that issue.

Submissions of the parties 3Counsel for the defendant submitted that the necessary starting point was that costs should follow the event and that accordingly, the defendant was entitled to the costs of the motion unless it appeared that some other order ought be made (see generally Oshlack v Richmond River Council (1998) 193 CLR 72 at [96]). 4In support of his submission that an order should be made requiring the plaintiff to pay the defendant's costs, counsel for the defendant relied upon the following matters: (i)the defendant had been wholly successful on its notice of motion; (ii)the evidence before me on the hearing of the notice of motion (which was summarised at [14]-[21] of my judgment) established that prior to the filing of the motion, the defendant had attempted to resolve the issue on a number of occasions, on each of which the plaintiff refused to consent to the order sought; (iii)it was the position adopted by the plaintiff which led to the necessity to bring the motion; (iv)in the circumstances, and bearing in mind (inter alia) the evidentiary onus placed upon a defendant to disentangle alternative causes for a plaintiff's condition, the defendant had no option other than to bring the motion. 5Counsel for the plaintiff submitted that I should order that: (i)the costs of the motion be costs in the cause; or alternatively (ii)each party bear its own costs. 6Although he acknowledged that the defendant was successful on the notice of motion, counsel submitted that the position which had been adopted by the plaintiff, firstly in refusing to undergo MRI scanning and secondly in opposing the notice of motion, was "not an unreasonable one". This, counsel submitted, justified the making of an order other than that which was sought by the defendant. 7In support of what he submitted was the reasonableness of the position adopted by the plaintiff, counsel pointed to the fact that the plaintiff had previously undergone MRI scanning of his brain. It was submitted that in these circumstances, it was not unreasonable for the plaintiff to oppose further MRI scanning. 8Counsel further submitted that the evidence of medical opinion which was adduced in support of the necessity for a further MRI scan was "a little thin". In making that submission, counsel pointed to the observations at [55] of my judgment. 9Finally, counsel for the plaintiff submitted that it was inappropriate to order costs against the plaintiff in circumstances where there was a large disparity in the respective resources of the parties. He submitted that if the plaintiff was ultimately successful in his claim against the defendant, it would be just to have the costs of the notice of motion borne by the defendant.