Supreme Court New South Wales Medium Neutral Citation: Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2017] NSWSC 979 Hearing dates: On the papers Date of orders: 24 July 2017 Decision date: 24 July 2017 Jurisdiction: Common Law Before: Davies J Decision: 1. The Defendant's Notice of Motion filed 29 May 2017 is dismissed. 2. The Defendant is to pay the Plaintiff's costs of the Motion. Catchwords: PROCEDURE – costs – personal injury proceedings - notice of motion by Defendant for separate hearing on liability – motion withdrawn when availability of hearing dates became known – failure of defendant to enquire about hearing date range when filing motion – whether defendant should pay costs of the motion Legislation Cited: Civil Liability Act 2002 (NSW) Civil Procedure Act 2005 (NSW) Cases Cited: Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; [1999] HCA 9 Re Minister for Immigration & Ethnic Affairs (Cth); Ex Parte Lai Qin (1997) 186 CLR 622 Southwell v Bennett [2010] NSWSC 1372 Category: Costs Parties: Emily Jade Rose Tapp (Plaintiff) Australian Bushmen's Campdraft and Rodeo Association Ltd (Defendant) Representation: Counsel: A Bartley SC & K Oldfield (Plaintiff) D A Lloyd (Defendant) Solicitors: Commins Hendriks Solicitors (Plaintiff) RGS Law (Defendant) File Number(s): 2012/241041 Judgment 1. The Defendant applied by Notice of Motion filed 29 May 2017 for a separate hearing of liability from the question of the quantum of the Plaintiff's damage. The proceedings are personal injury proceedings commenced on 2 August 2012. The Plaintiff was a competitor in a camp drafting event. This involved a horse rider working cattle. The rider must separate one beast from the cattle and bring that beast to the front of the camp and back and forth across the cut yard a number of times to demonstrate to the judge the rider's control over the beast by keeping it from returning to the rest of the herd. The rider then proceeds to draft or work the beast around two pegs in a figure eight course in the arena. The beast is taken around one peg to the left and then to the right or vice versa. The rider then guides the beast through another gate consisting of two pegs. 2. The claim in the statement of claim is that prior to the Plaintiff competing in the event significant rain had fallen, multiple horses had been ridden on the ground and the ground had become had become slippery as the competition progressed. Whilst she competed in the event the Plaintiff fell from her horse and suffered a severe spinal injury, namely incomplete T11 paraplegia. 3. There have been lengthy delays in the matter being prepared for a hearing. It took some 22 months for the Defendant to file a defence and the proceedings were only given a hearing date at a directions hearing on 7 June 2016. On that date the matter was fixed for hearing on 8 May 2017. 4. On 28 February 2017 the Plaintiff retained new solicitors, Commins Hendriks, being the present solicitors who represent her. 5. When Mr Potter from Commins Hendriks finally obtained the Plaintiff's file from the previous solicitors it became apparent to him that there was a lot of work to be done in terms of medical evidence being obtained and updated. A significant matter was a consultation the Plaintiff had with Dr Selwyn Smith, a psychiatrist, on 29 March 2017. The report from Dr Selwyn Smith dated 31 March 2017 pointed to a significant aspect of the Plaintiff's condition which resulted in her being in denial about her disabilities. That matter tended to flow through and affect a great deal of the evidence already obtained because it was thought that she had significantly understated her disabilities to many of the doctors and other paramedical experts who had examined her. 6. The end result was that Mr Potter on the Plaintiff's behalf filed a Notice of Motion on 27 April 2017 seeking that the hearing date on 8 May 2017 be vacated. The matter came before Hoeben CJ at CL who had been case managing the proceedings for some time since December 2016. His Honour did not need much persuasion that the matter could not proceed on the date fixed and his Honour observed from reading the affidavits, chiefly Mr Potter's affidavit sworn 13 April 2017, that the damages case was, as his Honour put it, "an entirely new case". 7. Justice Hoeben also reserved the question of costs thrown away by the vacation of the hearing date, he directed the Plaintiff to file and serve all her liability evidence including evidentiary statements within 21 days and directed the Plaintiff's legal representatives to respond to the letter from the Defendant's solicitors of 21 April 2017 within 21 days. That was a letter concerning a conclave of liability experts. 8. Since those orders the Plaintiff has served the following material: (a) On 12 May 2017 re-served one of the Defendant's evidentiary statements; (b) On 19 May 2017 served a further report of Mr Doughty (an equestrian expert); (c) On 26 May 2017 served a further evidentiary statement of the Plaintiff; (d) On 1 June 2017 served a further report of Mr Doughty. No further damages evidence had then been served. 1. In his affidavit in response to the present Motion Mr Potter has listed the various doctors and experts with whom the Plaintiff has had consultations in May to July 2017, listed the reports he has served from April to July 2017, noted that there are outstanding appointments with Dr Patricia Jungfer, a psychiatrist and Mr Glen Sewell, a home modification expert and went on to say this: 32. From the Plaintiff's point of view, the position is ... Subject to obtaining an up to date report from an Occupational Therapist, a response to the Defendant's report in relation to life expectancy, and response to the Defendant's reports relating to vocational capacity, the Plaintiff is now in a position to proceed with her case both on damages and liability. 33. The Plaintiff will be in a position to serve all of her reports and supporting evidence in relation to damages by 30 September 2017. 1. Of the experts noted in Mr Potter's affidavit that the Plaintiff has seen, counsel for the Defendant accepted that Dr Greg Bruce, Dr Stuart Taylor, Dr Christopher Vickers and Professor Bruce Brew would be providing updated reports, having previously seen the Plaintiff, but said that Dr Geoffrey Miller, Dr Selwyn Smith, Ability Tech, Glynis Flanagan, Mark Ravhenani and Dr Monica Ling were new experts. 2. The reports that have served from the experts identified by Mr Potter are those of Dr Selwyn Smith, Dr Stuart Taylor, Dr Greg Bruce, Dr Christopher Vickers and Ability Tech. 3. The Defendant's fairly straightforward basis for seeking the separate liability hearing was that the parties were ready to have the liability hearing whereas there is quite a bit of work yet to do in relation to damages. The Defendant says further that the only witness common to both hearings is the Plaintiff herself. The Defendant accepted, nevertheless, that because of credit issues there will be an overlap in the evidence of the Plaintiff at the two hearings. 4. The Defendant submitted further that the issues of liability and damage were easily severable, that there was very real prospect that that a trial on liability would render a damages hearing unnecessary because of the likely prospects of success on a number of defences including those raised by ss 5L, 5M and 61 of the Civil Liability Act 2002 (NSW). 5. The Defendant submitted further that it is a volunteer organisation and, whilst it is accepted that the incident has had a profound and traumatic effect on the Plaintiff, it has also had a traumatic effect on the members of the Defendant who are keen to have liability issues resolved. There is furthermore the issue of recollections when already the accident happened some six and a half years ago and the need to wait until the damages case is ready for a hearing will likely extend that time considerably. 6. The Plaintiff opposed a separate liability hearing. She did so, first, because in the ordinary course liability and damages should be heard together. It was rare in personal injuries matters, it was submitted, for the two issues to be heard separately. The present case did not fall into the unusual categories of cases such as dying plaintiffs or catastrophic birth injury cases where matters favoured an early liability hearing. 7. The Plaintiff submitted that personal disabilities she had as a result of the accident made it difficult for her to be away from home staying in a hotel or something similar, and to have to do so on two separate occasions would be difficult, stressful and traumatic for her. There was psychiatric evidence from Dr Jungfer that extra stress would be placed on the Plaintiff in that regard. 8. The Plaintiff submitted also that little was to be gained by a separate hearing when the likelihood was, because of the legal issues involved in the defence, that there would likely be an appeal by whichever side lost before the damages hearing would be reached. 9. Each side called in aid ss 56 and 58 of the Civil Procedure Act 2005 (NSW). 10. After I heard the application by the Defendant I made enquiries of the Listing Manager to see what blocks of dates were available for both five and ten day hearings on the basis that a liability hearing alone would probably take five days whereas a full hearing would take ten days. There were three blocks of ten day hearings available before the end of April 2018. In those circumstances, and given that the five day blocks were around the same period the Defendant abandoned its claim for a separate hearing, and the parties agreed on a hearing date for the full trial commencing 30 April 2018. That left only the question of costs on the Notice of Motion to be determined. The parties agreed that written submissions should be lodged and I should determine the costs on the papers. 11. The Defendant submitted that the appropriate costs order was that there should be no order as to the costs of the Motion. This was because the Motion only became necessary because the hearing date was vacated on the Plaintiff's application. That was no fault of the Defendant but the hearing date was lost. There was good reason to think that a trial on a liability could be held shortly after the Motion was heard but the whole trial including the damages claim would not be able to be determined until much later because of the arrangements in place for the obtaining of further medical evidence by the Plaintiff. The Defendant submitted further that the Motion had served a useful purpose with the parties now having a hearing date for the whole matter with a timetable in place to ensure that the damages case is ready to be heard by the time of the date fixed for hearing. 12. The Plaintiff submitted that the Defendant had applied twice to have the hearing dates vacated during 2016. The Plaintiff submitted that the application for a separate hearing would not have met the threshold test laid down by the High Court in Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; [1999] HCA 9 at [45] and [51]. The Plaintiff also drew attention to the principles set out by Hallen AsJ (as his Honour then was) in Southwell v Bennett [2010] NSWSC 1372 at [15]. The Plaintiff submitted that in circumstances where she would be required to give evidence in both trials it was unsatisfactory for the hearing to be split in the way sought by the Defendant. Further, it could not be said that the separation of the trial on liability would facilitate the quicker and cheaper resolution of the proceedings. The Plaintiff also relied on a Calderbank offer she made that the application be dismissed with there being no order as to costs. 13. It may be accepted that the occasion for the Defendant seeking the separate trial on liability was the order vacating the hearing of the whole proceedings in May 2017 because the Plaintiff's new solicitors considered that the matter was inadequately prepared on the Plaintiff's behalf. On vacating the hearing date the Chief Judge had described the Plaintiff's damages case as an entirely new case. 14. The application for a separate trial was sought on the basis that the accident in respect of which the Plaintiff sued occurred on 8 January 2011, that is, six and a half years ago. It may be accepted that that is a lengthy period and that it may well have an effect on the memories of those who would be obliged to give evidence concerning matters of liability surrounding the accident. 15. The evidence discloses, however, that the delays in the matter being scheduled for hearing in May 2017 cannot be laid solely at the feet of the Plaintiff. Most if not all of the medical reports served by the Defendant were served in 2016 notwithstanding a number of the Plaintiff's medical reports having being served in the years preceding that year. Nor do the two applications by the Defendant to vacate the hearing date during 2016 sit easily with the apparently pressing desire of the Defendant now to have matters of liability determined because of what was expected to be the delay in the whole trial coming on for hearing. 16. The significant matter is, however, this. In his affidavit of 11 July 2017 the Plaintiff's solicitor, Mr Potter detailed the recent medical reports and those outstanding, and went on to say that the Plaintiff would be in a position to serve all of her reports and supporting evidence in relation to damages by 30 September 2017. The Defendant was thereby in a position to commence making appointments to respond to those medical reports already served and continuing to do so as further reports were served. It could reasonably be expected that the damages evidence would be complete by perhaps November or December at the latest. 17. If the Defendant's solicitors had made enquiries of the Listing Manager or the Registrar (as I did) he would have ascertained (as I did) that the earliest 5 days hearing blocks available were 4 December, 29 January, 5 February and thereafter at various dates from March to May 2018. He would also have ascertained (as I did) that there were three 10 day blocks available commencing 27 November, 29 January and 30 April. That was the information I imparted to the parties on 17 July which led to the Defendant seeking to withdraw its motion for a separate trial. 18. In other words, had appropriate enquiries been made the probabilities are that no motion would have been brought because of the futility of such a motion. No earlier hearing date would have been obtained had a separate trial been ordered. 19. Even if that information had not been known, the Defendant's case for a separate trial was not a strong one, particularly given the extensive delays in having the matter prepared to the present point brought about, it seems, by failures on the part of both parties. Failing memories and a desire to put the matter behind all of those involved on both sides carried little weight when there was already more than a six year delay in the matter coming to trial whether on liability alone or on all issues. The only personal injury matters ordinarily heard in two parts are catastrophic birth cases where it is frequently necessary to wait to see the child's teenage development, and cases where plaintiffs are close to death. 20. It seems likely in the present case that the Plaintiff's credibility would be an issue. That was a strong factor against two trials where she would give evidence in both. Further, the case does not appear to me to be an overwhelmingly strong one for the Defendant such that one could conclude on balance that a liability trial was likely to bring an end to the proceedings. There was also the perennial problem in split trials of appeals in the meantime which would ultimately delay and add costs to the matter. 21. In Re Minister for Immigration & Ethnic Affairs (Cth); Ex Parte Lai Qin (1997) 186 CLR 622 McHugh J said (at 624-625): In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. The court cannot try a hypothetical action between the parties. To do so would burden the parties with the costs of a litigated action which by settlement or extra-curial action they had avoided. In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action. In administrative law matters, for example, it may appear that the defendant has acted unreasonably in exercising or refusing to exercise a power and that the plaintiff had no reasonable alternative but to commence a litigation. Thus, for example, in R v Gold Coast City Council; Ex parte Raysun Pty Ltd, the Full Court of the Supreme Court of Queensland gave a prosecutor seeking mandamus the costs of the proceedings up to the date when the respondent Council notified the prosecutor that it would give the prosecutor the relief that it sought. The Full Court said that the prosecutor had reasonable ground for complaint in respect of the attitude taken by the respondent in failing to consider the application by the prosecutor for approval of road and drainage plans. Moreover, in some cases a judge may feel confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried. This is perhaps the best explanation of the unreported decision of Pincus J in South East Queensland Electricity Board v Australian Telecommunications Commission where his Honour ordered the respondent to pay 80 per cent of the applicant's taxed costs even though his Honour found that both parties had acted reasonably in respect of the litigation. But such cases are likely to be rare. If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings. This approach has been adopted in a large number of cases. 1. Although those remarks were made in the context of proceedings which were otherwise not pursued in their entirety, they are relevant to the present matter. For the reasons given, I do not consider in the circumstances that the Defendant acted reasonably in filing its motion. I consider that the appropriate order is that the Defendant pay the Plaintiff's costs of the motion. 2. The Plaintiff seeks that those costs be paid on an indemnity basis from the time of service by her of a Calderbank offer. The offer provided that the Motion be dismissed be withdrawn and dismissed and that each party pay her and its own costs. 3. The Calderbank offer served by the Plaintiff's solicitors was served the day before the Motion was due to be heard at about 3:00pm on that day before. It was left open for acceptance until 5:00pm that day. I do not consider in the circumstances that that gave a reasonable time for the Defendant to take instructions and consider the offer made. Although I am of the view that the Defendant should pay the Plaintiff's costs of the application those costs should be paid on the ordinary basis. 4. The orders I make are: 1. The Defendant's Notice of Motion filed 29 May 2017 is dismissed. 2. The Defendant is to pay the Plaintiff's costs of the Motion. ********** 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: 24 July 2017