Sweetman v Ritter (No 2) [2014] NSWDC 112

District Court New South Wales

Medium Neutral Citation: Sweetman v Ritter (No 2) [2014] NSWDC 112 Hearing dates: On the papers Decision date: 20 June 2014 Jurisdiction: Civil Before: P Taylor SC DCJ Decision: (1) The plaintiff have leave to file a statement of claim and rule 15 particulars by 4 July 2014. (2) Order that the costs of the summons be costs in the proceedings. Catchwords: COSTS - application for leave to commence proceedings out of time - leave granted Legislation Cited: Motor Accidents Compensation Act 1999, s 109 Uniform Civil Procedure Rules 2005, r 42.1, r 42.6, r 42.7 Cases Cited: Afarin v Excelior Pty Ltd [2013] NSWDC 65 Holt v Wynter (2000) 49 NSWLR 128 Category: Costs Parties: Colleen Sweetman (plaintiff) Jarrod Martin Ritter (defendant) Representation: Mr R Quickenden (plaintiff) Mr J Turnbull (defendant) Nash Allen Williams & Wotton (plaintiff) Sparke Helmore Lawyers (defendant) File Number(s): 2014/39875 Publication restriction: None

Judgment

1. Background 1The plaintiff, Colleen Sweetman, by way of summons sought leave to commence proceedings pursuant to s 109 of the Motor Accidents Compensation Act 1999. The hearing of the summons commenced on 28 February 2014 in Gosford and concluded on 22 May 2014 in Sydney. On 23 May 2014 I granted leave to the plaintiff to proceed. I also granted leave to the parties to file and serve written submissions on costs.

2. Costs 2Both parties provided written submissions. The plaintiff submits that the defendant should pay the plaintiff's costs of the summons on the ordinary basis. The defendant submits that there should be no order as to costs of the application with the intent that each party should pay her or its own costs.

2.1 Plaintiff's argument 3The plaintiff has the benefit of rule 42.1 of the Uniform Civil Procedure Rules 2005 in that as a general rule costs follow the event unless it appears to the Court that some other order should be made. The plaintiff was successful on the application for leave and the plaintiff submits that there is no "material" in this case "to justify a contrary order being made".

2.2 Defendant's argument 4Although there was a statement annexed to Dominic Nash's affidavit dealing with the early part of the claim, the plaintiff had not previously provided an affidavit. Thus, the defendant submits that it was not until the plaintiff gave oral evidence on the first day of the hearing of the summons that the plaintiff completed her explanation. In those circumstances, the defendant submits, it was entitled to test the evidence put forward by the plaintiff and that resistance to the application was reasonable.

2.3 Analysis 5Holt v Wynter (2000) 49 NSWLR 128 is authority for the proposition that if a plaintiff allows the limitation period to expire and the defendant's opposition to an extension is not unreasonable the defendant is generally entitled to costs. I considered the application of Holt v Wynter and rule 42.1 of the Uniform Civil Procedure Rules 2005 in Afarin v Excelior Pty Ltd [2013] NSWDC 65 at [26]-[41] where I decided that Holt v Wynter was still authoritative. 6The plaintiff has not submitted that the defendant's opposition was unreasonable, and I accept that it was not. However, the expiration of the limitation period appears to have been a decision of the plaintiff's solicitor rather than the plaintiff. 7The plaintiff's application was required irrespective of the attitude of the defendant. The plaintiff in the summons sought "costs of the summons be costs in the cause unless the summons is contested by the Defendant". 8Although rule 42.1 provides that generally, costs are to follow the event, that rule is subject to other rules in Part 42. One example of a contrary provision is rule 42.6, which governs amendments of pleadings without leave. Rule 42.7 is a more relevant provision, drafted in similar terms it applies to interlocutory applications, and provides a general rule that costs of interlocutory applications become costs of the proceedings. The present application, at least in substance, is interlocutory. 9Factors such as the success of the application, the reasonableness of the opposition to the application, the circumstance that it was within the power of the plaintiff to avoid the need for the application, the nature of the costs order sought in the summons, the interaction between rules 42.1 and 42.7, and the conduct of the parties that bore upon the success of the application, are relevant to the appropriate costs order, but militate toward different outcomes. 10Bearing those factors in mind, it seems to me the proper order should be that the costs of the summons be costs in the proceedings.

3. Time 11The plaintiff sought approximately two weeks to file her statement of claim and rule 15 particulars. The defendant's submissions are silent on this issue. I propose to allow this period of time.

4. Orders 12The orders of the Court are: (1)The plaintiff have leave to file a statement of claim and rule 15 particulars by 4 July 2014. (2)Order that the costs of the summons be costs in the proceedings.

********** 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: 23 July 2014