Saky Tomas v David Oshana [2019] NSWDC 176

District Court New South Wales

Medium Neutral Citation: Saky Tomas v David Oshana [2019] NSWDC 176 Date of orders: 13 February 2019 Decision date: 13 February 2019 Jurisdiction: Civil Before: Letherbarrow SC DCJ Decision: Order the defendant to pay one-third of the plaintiff's costs of the proceedings assessed on an ordinary basis. Catchwords: COSTS – Judgment for less than $40,000 – Whether commencing proceedings in the District Court warranted – Order that defendant pay a specified proportion of the plaintiff's assessed costs Legislation Cited: Motor Accidents Compensation Act 1999 Civil Liability Act 2002, ss 5D and 5E Uniform Civil Procedure Rules 2005, r 42.35 Civil Procedure Act 2005, s 98(4)(b) Local Court Act 2007, s 29 Cases Cited: McLennan v Antonios (No 2) [2014] NSWDC 38 Al Saad v Barron-Brown (15 November 2018, unreported) Category: Costs Parties: Saky Tomas (plaintiff) David Oshana (defendant) Representation: Counsel: J Trainor (plaintiff) D O'Dowd (defendant)

Solicitors: Than & Associates (plaintiff) Hall & Wilcox (defendant) File Number(s): 2018/00060343 Publication restriction: None

Judgment 1. In this matter the plaintiff sought damages under the Motor Accidents Compensation Act for injuries said to have been sustained in a motor vehicle accident which took place on 15 July 2013, when he alleges that his stationary motor vehicle was struck from behind by the vehicle driven by the defendant. 2. The plaintiff's solicitors chose to commence proceedings in this Court by a statement of claim filed on 23 February 2018. The statement of particulars filed with such statement of claim pleaded a neck and back injury leading to various disabilities. A claim estimated at approximately $5,000 was particularised for past out-of-pocket expenses. However, the claim particularised for future out-of-pocket expenses was considerable and totalled over $50,000. The plaintiff also made a claim for past domestic assistance at eight hours per week for six months, totalling approximately $8,000. He also made a claim for future commercial domestic assistance at three hours per week to age 75 resulting in a figure of $100,000. In relation to past and future loss of earnings the statement of particulars states that these will "be provided". 3. The position in relation to economic loss is the subject of some disagreement between counsel. It is clear that the particulars to which I have referred do not make any specific claim but at CARS there was a not insignificant economic loss claim made which Mr O'Dowd, counsel for the defendant, says was to be maintained in this Court. 4. It would therefore seem that the overall claim, at least as particularised, was one of a reasonable size and well beyond the jurisdiction of the Local Court in personal injury matters of some $60,000 as set out in s 29 of the Local Court Act. 5. When the matter was before CARS it was exempted and the certificate of exemption is in evidence on this application and is exhibit A. In it, numerous reasons are given as to why the principal claims assessor exempted the claim. These include that the insurer had produced video surveillance film which suggests that the claimant was working more hours than he said he was working and that the insurer had attempted to obtain records from the claimant's employer which had not produced any such records. Further, the principal claims assessor goes on to state that the allegations against the claimant made by the insurer; "… are serious and the evidence produced by the insurer is voluminous. In my view, a more just, quick and cost-effective assessment of this claim will occur if this claim is exempt from assessment." 1. The defendant filed its defence on 19 July 2018. Such defence in paragraph 4 states that the defendant relies upon s 117 of the Motor Accidents Compensation Act and "alleges that the plaintiff has made false and misleading statements regarding his involvement in the motor vehicle accident." It then goes on to allege several specific false and misleading statements allegedly made by the plaintiff to different persons and does not admit that the plaintiff suffered any loss or damage in the subject accident. It also pleads ss 5D and 5E of the Civil Liability Act. 2. This morning I was informed that the matter had settled and a few moments ago, before commencing these ex tempore reasons, I made orders pursuant to consent orders handed up. Paragraphs 1 and 2 thereof are as follows: "1. Judgment for the plaintiff in the sum of nil as follows: (a) Damages agreed at $8,600; (b) less s 83 expenses and non attendance fees in excess of $8,600 but agreed to be $8,600.2. The question of the plaintiff's entitlement to costs be resolved by the Court." 1. This is the issue that these ex tempore reasons go to, namely, what order for costs, if any, should be made in relation to the settlement to which I have referred. I was informed that the settlement came about as a result of the defendant making an offer of compromise in the terms mentioned on 7 February last and which was accepted by the plaintiff this morning. 2. The position of the parties is diametrically opposed in relation to the issue of costs. Mr O'Dowd submits that pursuant to r 42.35, as the settlement sum was less than $40,000, it is necessary for the Court to be satisfied that the commencement and continuation of the proceedings in the District Court rather than in the Local Court was warranted before an order for costs is made. He argued that the size of the settlement, which was effectively only for out-of-pocket expenses paid by the defendant on behalf of the plaintiff, meant that these proceedings should not have been commenced in this Court and therefore no costs should be allowed at all. 3. On the other hand, Mr Trainor, counsel for the plaintiff, made two submissions. Firstly, he submitted, without further articulation, that r 42.35 does not apply to proceedings such as this. Secondly, he argued that if it did, the commencement and continuation of the proceedings in this Court was warranted and in this regard he relied upon certain comments made by her Honour Gibson DCJ in McLennan v Antonios (No 2) [2014] NSWDC 38. 4. Rule 42.35 provides as follows: (1) This rule applies if: (a) in proceedings in the District Court, a plaintiff has obtained a judgment against the defendant or, if more than one defendant, against all the defendants, in an amount of less than $40,000, and (b) the plaintiff would, apart from this rule, be entitled to an order for costs against the defendant or defendants. (2) An order for costs may be made, but will not ordinarily be made, unless the District Court is satisfied the commencement and continuation of the proceedings in the District Court, rather than the Local Court, was warranted. 1. As can be seen, whilst a costs order can be made in matters where the judgment against the defendant is less than $40,000, it will not ordinarily be made unless this Court is satisfied that the commencement and continuation of the proceedings in this Court rather than the Local Court was warranted. 2. Firstly, I am against Mr Trainor in relation to his submission that this rule does not apply to these proceedings. As mentioned, he did not develop this argument in any way and, in any event, in my view the wording of the rule is clear and it does apply to the current situation. The real question is whether the proceedings should have been commenced and continued in this Court as opposed to the Local Court. 3. I have recently had reason to consider, inter alia, this rule in Al Saad v Barron-Brown (15 November 2018, unreported) and I generally adopt what I said in that decision in the present circumstances. In that decision I also refer to what her Honour Gibson DCJ stated in McLennan at paragraph 11, which is as follows: "Both counsel agree that the District Court should be regarded as a specialist personal injury court, by reason of the large number of negligence, motor vehicle, work injury, medical negligence and other personal injury-related claims heard in this court. By contrast, the Local Court, although now having a jurisdictional limit of $100,000, rarely, if ever, deals with motor vehicle accident matters (except motor vehicle property damage cases). In addition, a two day hearing in a civil matter in the Local Court would, in Mr Khandhar's submission, be difficult to arrange." 1. It would seem that her Honour may have been in error in her understanding of the jurisdictional limit of the Local Court being $100,000 rather than $60,000. However, her Honour also made reference to the difficulties in arranging a two-day hearing in the Local Court where it is common knowledge that almost all matters for hearing are listed for one day and if they go beyond one day they are then stood over for a considerable period of time before the extra day takes place. Overall, I agree with what her Honour stated in McLennan. 2. These proceedings on their face were not straightforward motor vehicle accident proceedings. The defendant applied and had them exempted from CARS on the basis of allegations of, in effect, fraud by the plaintiff. Those allegations were further particularised in the defendant's defence. 3. It is my experience and understanding that the Local Court hardly, if ever, hears motor vehicle personal injury matters, especially ones involving allegations of fraud. This was also, at least as particularised, a sizable case, although the settlement was for much less. 4. In all the circumstances, the Court is satisfied that the commencement and continuation of these proceedings in this Court was warranted. Also whilst it is of course not determinative, at no stage did the defendant ever seek to have the proceedings transferred to the Local Court and one could perhaps infer from that that the defendant preferred the matter being left in this Court, although, as I have said, that is only one matter. 5. However, the determination that a costs order is warranted under r 42.35 is not the end of the matter. The fact that the matter settled for out-of-pocket expenses already paid by the defendant means, in essence, that the plaintiff did not achieve any positive result from these proceedings. In these circumstances, questions of proportionality arise and are of primary importance. Accordingly I intend to approach this question by utilising my power pursuant to s 98(4)(b) of the Civil Procedure Act which permits the Court to allow a "specified proportion of the assessed costs." 6. In my earlier decision of Al Saad, I made an order that the defendant was to pay 50% of the plaintiff's costs of the proceedings on an ordinary basis. The circumstances there were a little different from here. In that case the plaintiff did in fact obtain a sum clear of out-of-pocket expenses of $1,000. In my view, taking all matters into consideration, I order that the defendant is to pay one-third of the plaintiff's costs of the proceedings assessed on an ordinary basis.