AW & Ors v State of NSW [2005] NSWSC 1173

AW & Ors v State of NSW [2005] NSWSC 1173

First plaintiff, having failed on all claims, should pay twenty percent of the defendant's costs, which is a fair estimation of the proportion attributable to his claims. The second and third plaintiffs, having succeeded on major issues, are to have their costs paid by the defendant, apportioned equally and limited to one set of counsel and solicitors, with indemnity costs for the third plaintiff from the day after her offer of compromise. No indemnity costs are warranted for the second plaintiff from the commencement of proceedings as her offer exceeded the judgment and her claim as pleaded at the offer stage was not wholly successful.

Parties
First Plaintiff: AW; Second Plaintiff: LW; Third Plaintiff: JS; Defendant: State of NSW
Jurisdiction
Australia
Judgment Date
30 November 2005
Procedural Posture
Civil / Costs Judgment Following Final Judgment
Outcome
Costs apportioned among parties as specified: first plaintiff to pay part of defendant's costs; defendant to pay second and third plaintiffs' costs on specified bases.
Legal Topics
Malicious Prosecution, False Imprisonment, Abuse of Process, Costs
Torts Civil Procedure Malicious Prosecution False Imprisonment Abuse of Process Costs

Case Brief

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Parties

AW

First Plaintiff

LW

Second Plaintiff

JS

Third Plaintiff

State of NSW

Defendant

Procedural Posture

Civil / Costs Judgment Following Final Judgment

Legal Issues

  1. 1 Whether the usual order as to costs should be departed from for the first plaintiff despite losing
  2. 2 Whether the second and third plaintiffs should be awarded indemnity costs and from what date
  3. 3 How costs should be apportioned where plaintiffs were partly successful and where representation was shared

Ratio Decidendi

First plaintiff, having failed on all claims, should pay twenty percent of the defendant's costs, which is a fair estimation of the proportion attributable to his claims. The second and third plaintiffs, having succeeded on major issues, are to have their costs paid by the defendant, apportioned equally and limited to one set of counsel and solicitors, with indemnity costs for the third plaintiff from the day after her offer of compromise. No indemnity costs are warranted for the second plaintiff from the commencement of proceedings as her offer exceeded the judgment and her claim as pleaded at the offer stage was not wholly successful.

Court Disposition

Costs apportioned among parties as specified: first plaintiff to pay part of defendant's costs; defendant to pay second and third plaintiffs' costs on specified bases.

Orders

  • The first plaintiff is to pay twenty percent of the defendant's costs of the proceedings not previously dealt with.
  • The defendant is to pay the second and third plaintiffs their costs of the proceedings, not otherwise dealt with, limited to the costs of briefing one set of counsel (senior and junior) and one firm of solicitors to be apportioned fifty percent as to the second plaintiff on a party and party basis and fifty percent...