District Court New South Wales Medium Neutral Citation: Randall v State of New South Wales [2014] NSWDC 48 Hearing dates: 21 February 2014 Decision date: 21 February 2014 Before: Neilson DCJ Decision: Defendant to pay the costs of the plaintiff in proving facts numbered 1 to 5 in the defendant's Notice Disputing Facts. Defendant to pay the plaintiff's costs of the application. Catchwords: COSTS - Indemnity costs - Notice to admit facts - Disputed facts proved at trial - Vicarious liability - Party should seek instructions from all those for whom it is liable or who are relevant to its case - Defendant could have marshalled the evidence and decided whether to admit the facts or not Legislation Cited: Civil Procedure Act 2005 Cases Cited: Liverpool City Council v Estephan [2009] NSWCA 161 Texts Cited: Ritchie's Uniform Civil Procedure NSW Category: Principal judgment Parties: Wayne Anthony John Randall State of New South Wales Representation: C Steirn SC (Plaintiff) D Woodbury (Plaintiff) M Spartalis (Defendant) Foott, Law & Co. (Plaintiff) McCabe Terrill Lawyers (Defendant) File Number(s): 2012/158922 Publication restriction: No. Names of certain witnesses bowdlerised. Judgment 1HIS HONOUR: This is the twentieth year in which I will make the observation that nothing excites the zeal, the ardour and the passion of the legal profession than an argument about costs. The plaintiff seeks an order pursuant to UCPR 42.8. That rule is in the following terms: "(1) In this rule: disputing party means the party who serves a notice disputing a fact under r 17.3 (2). fact in dispute means the fact that is the subject of a notice served under r 17.3 (2). requesting party means the party who is served with a notice disputing a fact under r 17.3 (2). (2) Unless the court orders otherwise, the disputing party must, after the conclusion of proceedings in which a fact in dispute is subsequently proved or is subsequently admitted by the disputing party, pay the requesting party's costs, assessed on an indemnity basis, being costs incurred by the requesting party: (a) in proving the fact, or (b) if the fact has not been proved - in preparation for the purpose of proving the fact. (3) An entitlement to costs under this rule is not affected by any order as to costs unless that order makes particular reference in that regard." The only relevant comment made on this rule in Ritchie's Uniform Civil Procedure NSW is this: "The rule appears to create an automatic entitlement to costs in favour of the party who proves the disputed facts. Notwithstanding that automatic entitlement, a party who relies upon the present rule should obtain a specific order. In the absence of such an order difficulties may well arise in enforcing the entitlement to costs - because the assessment provision in s 353 of the Legal Profession Act 2004 relate to the assessment of costs payable pursuant to an order. If an appropriate order has not been sought at the time of final judgment UCPR r 36.16(3) would appear to confer power to have an appropriate order made subsequently." 2It is surprising that there is no case law of which I am aware referring to this provision and initially I thought the provision was relatively novel. However, a similar provision was contained in SCR Pt 52A, r 19, and DCR Pt 39A, r 20. According to Ritchie's Supreme Court Procedure NSW, the Supreme Court rule on which the District Court rule has as a precedent Order 62, r 3(5) of the Rules of the Supreme Court of England. I have had a quick look at the White Book but the English rules have changed so remarkably I am unable to find any corresponding modern English rule. 3On 31 January 2012, the plaintiff's solicitor drew a Notice to Admit Facts and Authenticity of Documents and signed and dated that document. A copy of it was sent by email to the defendant's solicitor on 31 January 2013. The dating of the document is clearly a mistake. It should have been dated 31 January 2013. A draft response to the Notice to Admit Facts was made on 8 February 2013. Due to oversight, that Notice Disputing Facts was not filed within the time prescribed by the rules. On the second day of the hearing, I granted leave to the defendant to rely on the draft Notice Disputing Facts. The Notice to Admit Facts became exhibit A and the Notice Disputing Facts exhibit 1. 4The first part of the plaintiff's Notice to Admit Facts says this: "For the purpose of this Notice to Admit Facts, the "relevant period" is the period of time from 10pm, Friday, 22 April 2011, to 4am, Saturday, 23 April 2011." Among the facts that the plaintiff asked the defendant to admit are these: "4. The plaintiff was pushed/shoved by a Police Officer whilst on Canterbury Street in Casino during the relevant period. 5. The plaintiff was sprayed with capsicum spray by a Police Officer whilst in Canterbury Street in Casino during the relevant period. 6. The plaintiff was arrested by a Police Officer during the relevant period. 7. The plaintiff was transported via a police vehicle to Casino Police Station during the relevant period. 8. The plaintiff was placed in custody at Casino Police Station during the relevant period." 5The Notice Disputing Facts, upon which I granted the defendant leave to rely, disputed each of those facts. Each of those facts is a fact which I found when I determined the plaintiff's case on 5 December 2013. Under UCPR 42.8, the plaintiff became automatically entitled to have his costs of proving those disputed facts paid on an indemnity basis. However, the Court has a power to "order otherwise", but such a power would need to be exercised judicially. 6The defendant perceived that the reason the matter was before me today was to seek a general order for indemnity costs. However, that is not the relief which Mr Steirn SC sought on behalf of the plaintiff. He seeks an order pursuant to UCPR 42.8. There are a number of provisions which enable a party to seek some form of indemnity costs. The general principle has always been that costs follow the event. That is now provided by UCPR 42.1. At common law, the court usually made orders as between parties, that is, on a party-party basis. That basis is now called the ordinary basis. At common law, the court had a power to order costs on a solicitor and client basis, but that basis is now referred to as the indemnity basis. 7Under UCPR 42.2, unless the Court orders otherwise or unless the rules provide otherwise, costs payable to a person under an order made by the Court or an order made under the rules is to be assessed on the ordinary basis. I must point out that UCPR 42.8 is a provision in the rules that entitles a party automatically to obtain indemnity costs if UCPR 42.8 is enlivened. The power of the Court to order indemnity costs is now contained in the Civil Procedure Act 2005, s 98(1)(c). The costs that are allowable under such an order are specified in UCPR 42.5. It is this: "If the Court determines that costs are to be paid on an indemnity basis: (a) in the case of costs payable out of property held or controlled by a person who is a party to the proceedings: (i) in the capacity of trustee, executor, administrator or legal representative of a deceased estate, or (ii) in any other fiduciary capacity, all costs (other than those that have been incurred in breach of the person's duty in that capacity) are to be allowed, and (b) in any other case, all costs (other than those that appear to have been unreasonably incurred or appear to be of an unreasonable amount) are to be allowed." 8The Court has a general discretion to order indemnity costs. The defendant prepared written submissions which, to a large extent, reproduce the learning in the Civil Trials Bench Book commencing at [8 0090]. However, it is obvious that the defendant believed that a general indemnity costs order was being sought rather than an order limited to UCPR 42.8. The defendant also sought comfort from a dictum of Giles JA in Liverpool City Council v Estephan [2009] NSWCA 161 where His Honour said in [95]: "If an unreasonable failure to admit certain facts, for example, means that costs were incurred in proof of those facts, but costs were also incurred in genuine contest over many other factual and legal issues, there is unlikely to be a rational connection between the failure to admit facts and an order that the delinquent party pay on an indemnity basis the costs incurred in the genuine contest." In that case, the trial judge had made an indemnity costs order against the appellant because of disapprobation of the appellant's defence of claims made by a number of plaintiffs against it. That indemnity costs rule was set aside in that case because there were other matters clearly in dispute. However, the trial judge in Liverpool City Council v Estephan had not relied on UCPR 42.8 because it was not a question of a Notice Disputing Facts but rather was a question of dilatoriness in answering subpoenas and providing documents to the Court and the opposing parties. 9Other provisions of the rules give a party an entitlement to indemnity costs, in particular, the rules relating to offers of compromise contain in UCPR Pt 42, Div 3. Each of UCPR 42.8, and those provisions in Div 3 of Pt 42 raise a separate entitlement to indemnity costs. In my view, it is incorrect to apply dicta relating to the general exercise of the power under s 98(1)(c) to the automatic entitlement under UCPR 42.8. Initially, I perceived that the Notice to Admit Facts was merely a further attempt to plead the plaintiff's case, hoping that if the matters were not traversed within the time prescribed by the rules that in essence the defendant would be admitting liability. I was also concerned that if the defendant did dispute the facts sought to be admitted that that was only tantamount to the traverse of the plaintiff's statement of claim contained in the defence. However, I accede the submissions put to me on behalf of the plaintiff that it was not. There are many cases brought against the current defendant because of allegations of assault and/or false imprisonment committed by members of the NSW Police. If the facts were admitted, it would still have been open to the defendant to justify the conduct which the defendant admitted by, for example, calling the police officer who pushed the plaintiff in Canterbury Street to say that he did so in an attempt to defend himself. Likewise, the defendant could have called a police officer who sprayed the plaintiff with capsicum spray in Canterbury Street, Casino, to say that it was necessary to do so because of his attempts to assault the police or to behave in some form of offensive or riotous manner. It was also open to the defendant to call police officers who might be able to say that they had proper cause to arrest the plaintiff because of his conduct. Those same officers could attest to the necessity of having to transport the plaintiff to the Casino Police Station and keep him in custody there for processing as a result of his having been lawfully arrested for crimes such as assaulting the police and resisting arrest. 10In other words, the Notice to Admit Facts is not an attempt to re plead the plaintiff's whole case. The plaintiff would still need to enter the witness box to, for example, say that the conduct of which he complained, and which was admitted, was conduct to which he did not consent and which he had not in any way provoked. As Mr Steirn so eloquently put to me, it is equivalent to a plaintiff who alleges that he was punched in the nose and commences an action for assault. A Notice to Admit Facts is served upon the defendant but the defendant denies that he punched the plaintiff. The plaintiff then prepares to call a number of witnesses who saw the punch being thrown, but when the matter comes on for trial the only issue is whether the defendant was justified in punching the plaintiff because he was relying on self-defence. 11Another clear example is the case of a motorist who, deprived of his motor vehicle by a repairer, commences an action in detinue or in replevin and is met with a defence that the defendant did not detain the motorist's vehicle at any time. When the matter comes on for trial the only defence really is that the defendant had a repairer's lien and was entitled to keep custody of the car until the repairer's bill was paid. However, that defendant had incorrectly pleaded that he had not detained the car at all when it is clear that his case was that he did. 12The purpose of the rule is clearly to seek to narrow the issues tendered for the determination of the Court. If the issues are not narrowed because a party disputes a fact which is ultimately proved, then the rules mandate that the party who disputed the fact which should have been admitted ought to pay the costs on an indemnity basis in order to encourage litigants in the same position to narrow issues of fact. It is immaterial, in my view, that the defendant is the State of New South Wales and not those constables of police that I have identified as Alpha, Beta, Gamma and Delta. 13The State of New South Wales is vicariously liable for their actions. The State of New South Wales is in exactly the same position as a large corporation who acts through its directors, managers, employees and agents. A party should seek instructions from all those for whom it is liable or who are relevant to its case and make a judgment based on the issues in the case based on their information. This is hardly a case where the defendant could be seen to have somehow been taken by surprise. On 19 October 2012, the defendant's solicitors asked the plaintiff to reconsider his attitude requiring the defendant to file a defence by 5pm on 24 October 2012. In the defendant's letter, the defendant says this: "The plaintiff has not, up to this stage, nominated the police officers involved in his arrest. It is understood that the plaintiff has come into contact with a number of police officers previous to his alleged arrest (as well as after) and he should be in a position to indicate whether any of these other police officers were involved in his arrest and detention on 22/23 April 2011." 14That is a clear statement by the defendant's solicitor that Casino police had prior and subsequent dealings with the plaintiff who was clearly known to at least some members of the Casino constabulary. In a letter of 24 October 2012, which was, in part, an answer to the letter I have just quoted, the plaintiff identified two police officers who "may have been present at or around the time of the plaintiff [sic] being assaulted and/or falsely imprisoned". They were Senior Constable Michael Opryszko and Senior Constable Steven Nixon, both of whom gave evidence at the hearing. 15The same letter from the plaintiff's solicitor goes on to refer to a COPS event relating to the plaintiff's brother, Mr Colin Randall, which was germane to the current proceedings. Looking at that COPS entry, which became exhibit K in the hearing, that identified the policeman to whom I have given the moniker Alpha and also Senior Constable Michael McCormack who was from the Kyogle police. It is noteworthy that in exhibit K it is clear that a printout of it had been made by the police officer, whom I have given the pseudonym Gamma, on 11 October 2012 prior to the plaintiff's solicitor even referring the defendant's solicitor to the COPS entry I am currently discussing. 16Furthermore, it is clear that it was always within the power of the defendant to obtain the notebook of the policeman I have given the moniker Delta, which contains the plaintiff's name and a time and is referred to in [81] of my reasons for judgment. That notebook entry was exhibit L. The only relevant policeman not identified by the letter of 24 October 2012 or in the COPS entry in question is the police officer I have given the moniker Beta, but Beta was the "partner" on the evening in question with Alpha and Beta's notebook clearly shows his having been the victim of secondary spray of capsicum spray at 1.20am on 23 April 2011, which is the same time and date as recorded in Delta's notebook. That is referred to in [51] of my reasons for judgment. 17In other words, given what was said by the plaintiff's solicitor in his letter of 24 October 2012, it was open to the defendant to identify all relevant police. On 22 February 2013, clearly after the delivery of the Notice to Admit Facts, the plaintiff's solicitor told the defendant's solicitor that the plaintiff gave his name to a police officer when he was in custody at the Casino Police Station. Again, the plaintiff's solicitor was seeking to assist the defendant and of course at the police station the plaintiff's name was given at least to the ambulance officer within the hearing of police who were there. 18Furthermore, by letter dated 28 February 2013, when the defendant was asking the plaintiff to provide his photo to the defendant, the plaintiff's solicitor pointed this out: "You have now been made aware through ambulance records, which you subpoenaed, and we accessed on 24 January 2013, that ambulance officers attended the Casino Police Station in response to a police request in relation to our client having suffered the effects of capsicum spray whilst in custody at that police station." I have been told by Mr Spartalis that the ambulance records were in fact copied by the defendant's solicitor's agent on 1 February 2013 and therefore would have been in the defendant's solicitor's custody within a very short period time thereafter and clearly by 28 February 2013. The ambulance records, which became exhibit B, show that the police phoned the Ambulance Service by police radio at 1:23:19 on the morning of 23 April 2011 and that the ambulance officers attended the police station at 1.31am and had contact with the plaintiff at 1.32am. 19The ambulance officers were identified in the records and instructions could easily have been taken by the defendant's solicitor from those ambulance officers. After all, the State of New South Wales is vicariously liable for the activities of the Ambulance Service as well as the activities of police, although the vicarious liability of the Crown for police officers arises by statute, whereas the vicarious liability of the Ambulance Service arises under the common law. 20The defendant itself could have marshalled the evidence and decided whether to admit the facts or not. It did not. It disputed facts, as it is entitled to do, but pursuant to UCPR 42.8 it must pay the costs of unsuccessfully disputing facts called for by the Notice to Admit Facts on an indemnity basis. 21For those reasons, I order the defendant to pay the costs of the plaintiff in proving facts numbered 1 to 5 in the defendant's Notice Disputing Facts, which was exhibit 1 in these proceedings, on an indemnity basis. [FURTHER SUBMISSIONS] 22I order that the defendant pay the plaintiff's costs of today. ********** 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. Decision last updated: 09 May 2014