Sandra Battersby v Allan; Darrel Battersby v Allan ; (No. 2)

In each of these proceedings the defendant, who is a medical practitioner, filed a notice of motion seeking orders excluding two medical reports served by the plaintiffs. The first report was that of Dr Milder, which the defendant sought to exclude on the basis that Dr Milder lacked the necessary expertise to express the opinions contained in that report. The second was that of Dr Webster, which the defendant sought to exclude on the basis that it had been served outside of the time limits prescribed by the Uniform Civil Procedure Rules 2005 (“the Rules”).

The hearing of the motion commenced on 23 October 2017. However shortly after the commencement of the hearing, it became apparent that the evidence filed on behalf of the plaintiffs was deficient, necessitating counsel to seek an adjournment in order to rectify those deficiencies. The hearing of the motion was adjourned until 29 November 2017.

On 15 December 2017, I dismissed the defendant’s notice of motion: Sandra Battersby v Allan; Darrel Battersby v Allan [2017] NSWSC 1724. At the time of delivering judgment, I ordered that in the absence of agreement, each party should provide short written submissions as to the question of costs. This judgment deals with that issue.

The plaintiffs principally on the fact that the defendant had been unsuccessful in its motion. It was submitted that in these circumstances, costs should follow the event.

However, the plaintiffs also relied upon fact that during the course of the adjournment of the proceedings, they had offered to resolve the issues arising on the motion. The terms of that offer, which was expressed to be made according to the principles in Calderbank v Calderbank [1975] 3 All E R 333, essentially reflected the decision to which I ultimately came. Relevantly however, the plaintiffs offered that costs be costs in the cause.

In these circumstances, it was submitted that I should order that:

The defendant submitted that notwithstanding that the notice of motion had been dismissed, the general principle that costs follow the event should not apply. In support of that proposition, counsel for the defendant made the following submissions.

Firstly, counsel pointed out that the failure of the plaintiffs to properly address the evidence prior to the first day of the hearing had necessitated an application for an adjournment of the hearing of the motion. Whilst acknowledging that no objection was taken to that application, counsel submitted that such adjournment nevertheless represented an indulgence granted to the plaintiffs. It was submitted that such adjournment resulted in the plaintiffs filing a further three lengthy affidavits which established that those acting for the plaintiffs had made a number of deliberate forensic decisions in relation to obtaining relevant medical evidence which, in part, had resulted in the report of Dr Webster being served out of time.

Secondly, it was submitted that there had been a complete indifference on behalf of those acting for the plaintiffs to the requirements of the Rules, and previous directions and orders of the Court, regarding the service of expert evidence. This, it was submitted, resulted in the plaintiffs having to seek a further indulgence from the Court so as to be permitted to rely upon the report of Dr Webster.

It was submitted that in all of the circumstances I should order that:

Rule 42.1 of the Rules is in the following terms:

Further, s 98 of the Civil Procedure Act 2005 (NSW) is in the following terms:

In the present case, the defendant was unsuccessful in obtaining the orders which had been sought in the motion. However in my view, there are proper bases to depart from the general rule set out in r 42.1.

Firstly, as I have previously noted, the hearing of the motion first came before me on 23 October 2017. It would normally have been completed well within that day. The fact that it was not was due solely to a lack of preparation on the part of the plaintiffs’ solicitors. The adjournment was necessary to give them an opportunity to overcome a number of evidentiary shortcomings. The extent of those shortcomings can be gauged by the fact that a number of lengthy affidavits were then served. In these circumstances, there is no reason why the plaintiffs should not pay the costs of the defendant which have been thrown away as a consequence of that adjournment.

Secondly, although the defendant was ultimately unsuccessful in obtaining the orders sought in the motion, the plaintiffs have been granted an indulgence by the Court in being permitted to rely upon expert evidence which was served substantially outside of the period stipulated in the Rules. As I observed in my previous judgment at [74], it was the late service of the report of Dr Webster which necessitated the plaintiffs seeking such indulgence. That late service was brought about by the wholly unsatisfactory manner in which the case had been prepared by the plaintiffs’ solicitors. I also observed in my judgment (at [75]-[76]) that quite apart from a failure to comply with the Rules, the report of Dr Webster had been served in complete disregard to a number of orders made in the District Court regarding the service of medical evidence. Whilst the making of an order for costs is compensatory and not punitive (as to which see Ohn v Walton (1995) 36 NSWLR 77 at 79 per Gleeson CJ) these factors are nevertheless relevant to the exercise of my discretion. As far as the plaintiffs’ offer is concerned, it reflected no real element of compromise at all. In substance, it offered to resolve the matter on the basis of the orders which were subsequently made.

In all of these circumstances, and save for the costs thrown away by the adjournment of the proceedings, this is a case in which each party should bear its own costs.

I make the following orders: