Supreme Court New South Wales Medium Neutral Citation: Cosco v Hutley (No 2) [2018] NSWSC 1937 Hearing dates: 7 December 2018 Date of orders: 07 December 2018 Decision date: 07 December 2018 Jurisdiction: Common Law Before: McCallum J Decision: 1. The defendant file and serve expert evidence being a report of Belinda Jones of Fire Forensics Pty Ltd by 21 December 2018; 2. The plaintiff file and serve any reply to expert evidence by 1 March 2019; 3. The plaintiff to provide security for the defendant's costs by paying into Court the sum of $260,000 in respect of the work necessary to the conclusion of this matter as follows: (a) the sum of $130,000 on or before 15 December 2018; and (b) the sum of $130,000 on or before 1 March 2019. 4. Until security in accordance with order 3 above is provided, there will be a stay of proceedings; 6. The defendant has liberty to restore this application on 5 days' notice. Catchwords: CIVIL PROCEDURE – application for further security for costs – security previously provided by consent – whether amount awarded should reflect assumption that senior counsel will be briefed – consideration of proportionality Legislation Cited: Civil Procedure Act 2005 (NSW), s 60 Defamation Act 2005 (NSW) Category: Procedural and other rulings Parties: Anthony John Cosco (plaintiff) Vanessa Hutley (defendant) Representation: Counsel: N Olson (plaintiff) D Pritchard (defendant) Solicitors: D'Arcy Sloman Peacock Lawyers (plaintiff) Harris & Company (defendant) File Number(s): 2016/332100 Publication restriction: None Judgment ex tempore - revised 1. HER HONOUR: Before the court is an application for an order requiring the plaintiff to provide further security for costs. There have already been a number of orders for security made in the proceedings. Most recently, on 15 September 2017, the court made on order which was then contemplated to protect the defendant's position as to costs up to the commencement of the hearing. The order made on that date was that the plaintiff provide security in the additional sum of $110,000, the sum of $35,000 already having been ordered on an earlier occasion. In each case, those orders were made by consent. 2. The defendant has now formed an apprehension that the amount provided to date will be inadequate to protect her position, based on a number of developments. The application made in those circumstances is for two further amounts to be paid, being a total of $316,420, payable in two instalments on 15 December 2018 and 1 March 2019. The plaintiff has indicated that he would consent to the payment of a further $260,000 in two instalments of $130,000 on the same dates. 3. As noted in the defendant's submissions, the parties are accordingly about $56,000 apart. While the plaintiff's opposition to an order for the full amount sought by the defendant was based principally on a contest as to the appropriateness of permitting the defendant to rely on expert evidence at this stage, my assessment of the evidence has prompted me to accept the plaintiff's position for a different reason. 4. An affidavit sworn by the solicitor for the defendant, Mr Grant Hansen, sets out the basis on which he calculates the full sum sought. His calculation includes an allowance for the defendant to be represented by both junior and senior counsel at the hearing. Mr Hansen states, and I have no hesitation in accepting his opinion on this issue, that in his experience the allowance for senior counsel is appropriate and would be permitted on assessment. The court, however, has a duty to form its own assessment as to what is an appropriate order for security, having regard to the complexity of the issues and the provisions of s 60 of the Civil Procedure Act 2005 (NSW). Section 60 is a normative provision which holds that the practice and procedure of the court should be implemented with the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject matter in dispute. 5. Even the amount of security consented to by the plaintiff takes the total amount of security to the sum of $405,000. That is slightly more than the maximum damages amount allowed under the Defamation Act 2005 (NSW), which currently sits at just under $400,000. To contemplate going into a two week hearing in which the costs would dramatically exceed the maximum damages amount would be inimical to the object of the provision to which I have just referred. 6. Mr Hansen notes that it is contemplated that junior counsel in the matter will be Mr Richardson. Based on my experience in the conduct of this list, he is well able to conduct a hearing such as this without being led. That is not to disagree in any respect with Mr Hansen's opinion that the defence raises complex issues calling for counsel of the highest level of skill and experience and his further opinion that Mr McClintock SC is such a counsel. There is no doubt that he is, but I do not think it follows that the quantum of security to be awarded should reflect an assumption that senior counsel may appropriately be briefed in a case of this kind. 7. For those reasons I propose to order security in the sum consented to by the plaintiff of two further payments of $130,000 each on the dates indicated. 8. Separately, Mr Olson, who appears for the plaintiff, resisted any direction permitting the defendant, at this late stage, to rely on expert evidence. The issue on which expert evidence is sought to be served relates to a truth defence in respect of an imputation which asserts that the plaintiff endangered the lives of the defendant and her family by blocking a vent with flammable foam that could have caused an explosion or fire in their home. 9. In my respectful opinion, the issue is one which plainly could warrant the deployment of expert evidence, that is, evidence from a fire forensic expert, who will, as I understand the position, provide an opinion as to whether the act admitted by the plaintiff endangered lives in the manner articulated in the imputation. 10. For those reasons I make the directions set out in the short minutes of order, changing the date in order 1 to 21 December, 2018 and changing the amounts in order 3 to reflect this ruling. 11. In addition, I direct the defendant to provide to the plaintiff a copy of the letter retaining the expert by 14 December, 2018. 12. I am inclined to make no order as to costs of today. I delete paragraph 5 of the short minutes of order. ********** 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: 17 December 2018