Patten v Motor Traders’ Association of New South Wales (No 2) [2018] NSWSC 597

Supreme Court New South Wales

Medium Neutral Citation: Patten v Motor Traders' Association of New South Wales (No 2) [2018] NSWSC 597 Hearing dates: On the papers Date of orders: 10 May 2018 Decision date: 10 May 2018 Jurisdiction: Common Law Before: Lonergan J Decision: See [20] Catchwords: COSTS – amendment of defence – where amendment involves withdrawal of admissions – where evidence obtained in the process of exchange of statements supports withdrawal of admissions – where mediation had already taken place – unreasonableness of Plaintiff's opposition to amendment given the explanation provided – mediation of less utility as a result of Defendant's amendments Legislation Cited: Civil Procedure Act 2005 (NSW) s 98 Cases Cited: Patten v Motor Traders' Association of New South Wales [2018] NSWSC 392 Category: Costs Parties: Gregory Patten (Plaintiff/Respondent) Motor Traders' Association of New South Wales (Defendant/Applicant) Representation: Counsel: R Francois (Plaintiff/Respondent) P Moorhouse (Defendant/Applicant)

Solicitors: Employment Lawyers Australia (Plaintiff/Respondent) Moray & Agnew (Defendant/Applicant) File Number(s): 2017/148267

Judgment 1. On 4 April 2018, I gave judgment in respect of an application by the Defendant to amend its Defence: Patten v Motor Traders' Association of New South Wales [2018] NSWSC 392. I was asked to reserve the question of costs subject to written submissions. 2. I have received and read the written submissions of both parties as well as some of the documents provided as a "Confidential Exhibit" to the Affidavit of Ms Godfrey sworn 13 April 2018 which I also read. 3. I am of the view that none of the documents provided by way of "Confidential Exhibit" make any difference to the costs orders I propose to make. The parties provided, it seems by consent, a mediation paper by the Defendant which I did not read. I do not consider it appropriate to provide a party's mediation paper on this costs application. Given the way the amendments arose at a time after the mediation was completed and the explanation for them contained in the Affidavit which I accepted in my primary judgment, I am of the view there is nothing in that position paper which would make any difference to the costs orders I make. Quite apart from this consideration, the confidentiality of the mediation should be protected.