Smith v Edward (No 2) [2006] NFSC 5

Smith v Edward (No 2) [2006] NFSC 5

The second defendant was successful against the plaintiffs and the absence of a compulsory motor accident compensation scheme did not justify depriving it of costs. However, because the second defendant unsuccessfully raised and maintained issues of non-justiciability, absence of duty of care, and lack of power to undertake roadworks, thereby causing the plaintiffs additional expense, its costs recovery was limited to two-thirds of its taxed costs.

Jurisdiction
Australia
Judgment Date
16 June 2006
Procedural Posture
Civil Damages Proceedings; Costs / Reasons for Judgment on Costs After Earlier Reasons for Judgment, With Draft Orders Filed
Outcome
Reduced costs orders made for the second defendant; judgments entered for each plaintiff against the first defendant for agreed damages; judgments entered for the second defendant against each plaintiff.
Legal Topics
['costs Following the Event' 'reduced Costs Order' 'motor Accident Compensation Scheme' 'duty of Care' 'non Justiciability' 'roadworks Power']
['costs' 'tort Law' 'negligence'] ['costs Following the Event' 'reduced Costs Order' 'motor Accident Compensation Scheme' 'duty of Care' 'non Justiciability' 'roadworks Power']

Case Brief

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Procedural Posture

Civil Damages Proceedings; Costs / Reasons for Judgment on Costs After Earlier Reasons for Judgment, With Draft Orders Filed

Legal Issues

  1. 1 ['Whether costs orders in favour of the successful second defendant should be refused because Norfolk Island lacked a compulsory motor accident compensation scheme.' 'Whether costs orders in favour of the successful second defendant should be reduced because it unsuccessfully raised non-justiciability, absence of duty of care, and lack of power to undertake roadworks.' "Whether the first defendant should pay the plaintiffs' costs in accordance with the parties' agreement."]

Ratio Decidendi

The second defendant was successful against the plaintiffs and the absence of a compulsory motor accident compensation scheme did not justify depriving it of costs. However, because the second defendant unsuccessfully raised and maintained issues of non-justiciability, absence of duty of care, and lack of power to undertake roadworks, thereby causing the plaintiffs additional expense, its costs recovery was limited to two-thirds of its taxed costs.

Court Disposition

Reduced costs orders made for the second defendant; judgments entered for each plaintiff against the first defendant for agreed damages; judgments entered for the second defendant against each plaintiff.

Orders

  • ['In SC7 of 2004, judgment for the plaintiff, Patrick Thomas Smith, against the first defendant, John George Edward, in the sum of $69,764.98.' 'In SC7 of 2004, the first defendant pay the costs of the plaintiff, taxed on the basis that matters SC7 of 2004, SC8 of 2004 and SC9 of 2004 were conducted throughout as a...