Supreme Court New South Wales Medium Neutral Citation: Veolia Energy Technical Services Pty Ltd v Roads and Maritime Services [2019] NSWSC 1523 Hearing dates: 31 October 2019 Date of orders: 31 October 2019 Decision date: 31 October 2019 Jurisdiction: Common Law Before: Lonergan J Decision: (1) The defendant's notice of motion seeking vacation of the hearing date is dismissed. (2) The defendant is to pay the plaintiff's costs of the notice of motion. Catchwords: COSTS – notice of motion to vacate hearing date resolved shortly before hearing – issues raised required response by the plaintiff – whether costs should be costs in the cause – whether defendant should pay plaintiff's costs – notice of motion dismissed – defendant to pay plaintiff's costs of the notice of motion Category: Costs Parties: Veolia Energy Technical Services Pty Ltd (Plaintiff) Roads and Maritime Services (Defendant) Representation: Counsel: P Rickard (Plaintiff) R Perla (Defendant) Solicitors: Stiles Lawyers (Plaintiff) Wotton & Kearney (Defendant) File Number(s): 2018/292871 Publication restriction: Nil EX TEMPORE Judgment 1. These proceedings were commenced by way of statement of claim on 25 September 2018. They are proceedings by a workers compensation insurer, in effect, to obtain recovery of sums paid by it for workers compensation to the widow of a young man who was killed in July 2016 whilst attending to his work. The statement of claim sets out that payments by way of dependency to the widow and their young daughter were made, and Allianz Australia seeks repayment. 2. It is evident from the material tendered on this application which was made by notice of motion filed on 14 October 2019 that there are some issues of content to be argued between the plaintiff and the defendant, Roads and Maritime Services. One of the issues is underpinned by an expert report authored by a Mr Castor who is a tree expert. 3. It is common ground that in August 2019 the Registrar of this Court, with the cooperation of the parties, listed the proceedings for hearing with a five to seven day estimate to commence on Monday 12 October 2020. In the affidavits of Ms De Saint Simon tendered in support of the notice of motion, frank concession was made that inquiry had not identified that Mr Castor had booked himself for a trip overseas at the time allocated for the hearing date. With appropriate alacrity, and given the critical nature of Mr Castor's evidence to the defence, the notice of motion was filed. However, with cooperation between the parties, as well as some investigatory inquiries carried out by Mr Stiles, solicitor for the plaintiff, it was able to be clarified within a fairly short space of time that Mr Castor's overseas trip plans altered (due to a number of factors I do not need to go into for the purposes of this costs application), and he was able to be available for the hearing. 4. The parties between themselves sorted out by late or on 29 October that it was no longer necessary for the defendant to press for the vacation of the hearing date, but the parties were not able to reach an agreement about how costs should be dealt with in the circumstances. 5. The notice of motion itself was the subject of case management orders by the Registrar earlier in October, including orders requiring the filing of evidence and written submissions prior to 29 October 2019. That occurred, with written submissions being provided by both sides. It is also evident from the affidavit material that inquiries, assessment and analysis was properly carried out by the plaintiff's solicitor in an effort to determine whether it was really necessary that the hearing date be vacated or whether perhaps some other accommodation should be reached. 6. Mr Perla, appearing for the defendant, argued that a proposal that would be appropriately protective of the plaintiff's position is that the costs of the notice of motion should be the plaintiff's costs in the cause. He explained that this means that that if the proceedings resolved in favour of the plaintiff, the plaintiff would recover its costs of the notice of motion, but if the defendant is successful in the proceedings the plaintiff is protected from having to pay the defendant's costs associated with the notice of motion. 7. Mr Rickard, appearing for the plaintiff, argued that Ms De Saint Simon had candidly accepted responsibility for failing to make necessary inquiries before accepting the allocated hearing date and that this Court should bear in mind that whilst the proceedings are in effect by a workers compensation insurer, it is still representing the interests of a fund that has other responsibilities, including treating with care and respect potential witnesses who will be required to give evidence, but who have no overriding obligation to comply with the Court processes. Mr Rickard noted that his instructing solicitor had been careful to keep that aspect of the plaintiff's potential recovery protected by ensuring cooperation and sensitivity to the widow of the deceased so that she felt she could continue to cooperate with the necessary processes given that to date, there has been no agreement forthcoming from the defendant as to the quantum of the claim. 8. On those bases, Mr Rickard submitted that the defendant should pay the plaintiff's costs of the notice of motion. 9. It seems to me all things considered, the proper outcome is that the defendant should pay the plaintiff's costs of the notice of motion. It is clear on the evidence that the application for adjournment was made recognising that there had been a misstep and failure to adequately inquire as to the availability of a critical witness on the part of the solicitor with day-to-day conduct of the matter for the defendant, and this caused the need for the application and the need for the plaintiff solicitor's work in response. 10. In the exercise of my discretion I consider the appropriate outcome is the defendant pay the plaintiff's costs of the notice of motion. Orders 1. The defendant's notice of motion seeking vacation of the hearing date is dismissed. 2. The defendant is to pay the plaintiff's costs of the notice of 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: 05 November 2019