Briggs v Hillier (No 2)

1. [1]

   On 8 September 2025 I delivered judgment in this matter: Briggs v Hillier [2025] NSWSC 1021 (“the primary judgment”). On that day, I ordered that there be a verdict for the defendant and made an additional order that the plaintiff pay the defendant’s costs of the proceedings on the ordinary basis unless a party was able to demonstrate an entitlement for some other costs order. I gave liberty to apply on 7 days’ notice if further orders were required, including as to costs.

2. [2]

   The defendant filed a Notice of Motion on 15 October 2025. He relied on an affidavit of Ms Brit Mainhoff, solicitor for the defendant. The defendant seeks the following orders:-

   1. (1)

      That the plaintiff pay the defendant’s costs of and incidental to the proceedings on an indemnity basis from 3 May 2024 or 21 June 2024, and otherwise, on the ordinary basis, pursuant to rules 20.26(3)(a) and 42.15A of the Uniform Civil Procedure Rules; and

   2. (2)

      That the plaintiff pay the defendant’s costs of and incidental to the proceedings in a lump sum amount of $800,000 pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW).

Background

1. [3]

   On 16 December 2020, the plaintiff filed a Statement of Claim in this Court alleging negligence on the part of the defendant. On 21 May 2021, she filed a Further Amended Statement of Claim, a Second Further Amended Statement of Claim on 11 April 2022 and a Third Further Amended Statement of Claim at an early point during the trial. The allegations of negligence and particulars of injury contained within the Third Further Amended Statement of Claim are set out in the primary judgment at [9]-[10].

2. [4]

   The events and communications between the parties in the lead-up to the hearing are set out in the affidavit of Ms Mainhoff sworn on 15 October 2025. Annexed to that affidavit was an exhibit containing several emails exchanged between the parties during that time. That affidavit and the accompanying exhibit disclose the following relevant facts.

3. [5]

   On 24 May 2022, the defendant requested further and better particulars with respect to a limitation issue which was said to give rise to the claim being statute barred pursuant to s 18A of the Limitation Act 1969 (NSW). On 16 June 2022, the plaintiff’s solicitors responded to the defendant, stating that they did not agree that the matter was statute barred pursuant to s 18A of the Limitation Act. In an Amended Defence filed 17 February 2023, the defendant relied on s 18A of the Limitation Act as a complete defence to the plaintiff’s claim, which he said was statute barred.

4. [6]

   On 6 December 2023, the parties participated in a mediation. The matter did not resolve on that occasion.

5. [7]

   On 13 February 2024, the defendant’s solicitors again wrote to the plaintiff’s solicitors reiterating their position that the plaintiff’s claim was prima facie statute barred.

6. [8]

   On 2 May 2024, the defendant served an Offer of Compromise (“the first Offer of Compromise”) and a Calderbank letter. The Offer of Compromise invited the plaintiff to compromise her claim by agreeing to a verdict in favour of the defendant on the basis that each party bear his and her own costs. I observe that it is not in dispute that the Offer of Compromise complied with r 20.26 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”).

7. [9]

   A letter accompanying the Offer referred to two expert opinions which were said to establish that the defendant would be entitled to rely on ss 5I and 5O of the Civil Liability Act and would therefore not be liable for negligence. The letter also noted that the plaintiff would not establish causation and reiterated the defendant’s position that the claim would be statute barred under the Limitation Act. I observe that at this time, all relevant lay and expert evidence had been served but for material dealing with the late discovery (by the plaintiff) of certain radiology and a belated complaint about urinary incontinence said to be caused by the defendant’s negligence. The former was immaterial to my judgment, and I dismissed the latter complaint. The Offer of Compromise was not accepted by the plaintiffs.

8. [10]

   On 20 June 2024, the defendants served on the plaintiff an Offer of Compromise and a Calderbank letter in the same terms as the first (“the second Offer of Compromise”). The second Offer of Compromise was likewise not accepted by the plaintiff.

9. [11]

   The affidavit of Ms Mainhoff exhibits all tax invoices for costs and disbursements sent to and paid by Avant Insurance Limited, the professional indemnity insurer of the defendant, from 8 February 2021 over the life of the litigation. The invoices total 477 pages. Also exhibited is a summary of those invoices. The total for solicitors’ costs is $315,682 and $755,301.87 in disbursements (including counsels’ fees). I observe that the charge out rate for a partner was $370 per hour, $350 per hour for a special counsel, $320 per hour for a senior associate and $120 per hour for a graduate at law. These charge out rates are very modest indeed.

10. [12]

    The plaintiff relies on an affidavit of Mr GJ Potter sworn on 19 November 2025. He says that he has not been provided an itemised statement of costs and disbursements in accessible form, that the defendant relied heavily on counsel in the proceedings with respect to work ordinarily carried out by solicitors and that in his opinion, much of the solicitors’ work would have consisted of reporting to Avant Insurance Limited. Further, he says that an offer was made to the defendant on costs. I observe that the defendant has exhibited the entirety of his file on costs and disbursements. It is entirely transparent and matches up with Ms Mainhoff’s summary, which is also exhibited to her affidavit. The work of the barristers detailed in their tax invoices appears to be the usual work of barristers rather than solicitors. It was incumbent on the defendant’s solicitors to report to their client and seek instructions from time to time, in the same way it was incumbent on the plaintiff’s solicitors to seek instructions from her.

Offer of Compromise

1. [13]

   Section 98 of the Civil Procedure Act confers a broad discretion on the Court to decide questions of costs. It is uncontroversial that where an Offer of Compromise made in accordance with r 20.26 of the UCPR is not accepted by a plaintiff and the defendant obtains a judgment no less favourable than the terms of the offer, the defendant will be entitled to costs on an indemnity basis from the day after the offer was made unless the Court orders otherwise: r 42.15A UCPR. There is, in effect, a presumption in favour of indemnity costs in those circumstances, a proposition with which Ms Hillier, who appeared on behalf of the plaintiff, did not cavil with: see Langden v Carnival plc t/as P&O Cruises Australia (2024) 115 NSWLR 78; [2024] NSWCA 168 at [187]. In those circumstances, it will be for the plaintiff to demonstrate why the Court should make an order otherwise.

2. [14]

   There must be an element of compromise contained in an Offer of Compromise. Depending on the time at which an offer is made, and the stage of the litigation, a defendant’s “walk away” offer may amount to a genuine compromise: see Leichhardt Municipal Council v Green [2004] NSWCA 341 at [36]-[37], [56].

3. [15]

   In the present case, at 2 May 2024 the proceedings (which I case-managed) had been on for more than three and a half years. They were at a very advanced stage, some seven weeks out from a long trial. All the significant lay and expert evidence had long been exchanged between the parties. In particular, the plaintiff had long had access to all available medical and physiotherapy records over the years since her surgery with the defendant, which were at significant odds with her evidence.

4. [16]

   In my opinion, at 2 May 2024, there was a real element of compromise contained in the defendant’s first Offer of Compromise and I will therefore make an order that plaintiff pay the defendant’s costs on the ordinary basis up to the day of service of the 2 May 2024 offer and thereafter on an indemnity basis.

Gross Sum Costs Order

1. [17]

   The defendant also seeks a gross sum costs order in the sum of $800,000. He relies on the approach in such cases as Salmon v Albarran (No 2) [2025] NSWCA 115 at [12]-[13] and [28]-[32] (“Salmon”) and Hamod v State of New South Wales [2011] NSWCA 375 (“Hamod”).

2. [18]

   In particular, the defendant submits that the case was complex and lengthy so that it is desirable to avoid the expense, delay and aggravation likely to be involved in a contested costs assessment: see Hamod at [817]. Further he submits that the conduct of the plaintiff has unnecessarily contributed to the costs of the proceedings, in particular on the issues of limitation and the plaintiff’s urinary incontinence claim, both of which were found in the defendant’s favour. The defendant also submits that the sum sought represents a considerable discount against the solicitors’ fees and disbursements incurred in the defence of the matter and that the discounts appropriately reflect the differential between solicitor/client and party/party costs and the avoidance of the costs of an assessment.

3. [19]

   The plaintiff submitted that there was no evidence that there would be a contested costs assessment, although I observe that the plaintiff has made a costs offer in an amount which must inevitably point to the likelihood of a contested costs application. It was further submitted that the conduct of the plaintiff did not contribute unnecessarily to the length of the trial. It is the case, as submitted by the plaintiff, that the Court determined on 21 February 2024 that the plaintiff’s application to extend the limitation period (to the extent that it was necessary) would be dealt with at the final hearing. I note that the plaintiff was unsuccessful on the limitation point, and her case would have failed even had she been successful. The plaintiff also submitted that the defendant has failed to put into evidence the likely costs of a costs assessment, which means that the Court cannot consider the appropriateness of any discount.

4. [20]

   In Salmon, the Court comprising Ward ACJ, Leeming and Ball JJA said the following with respect to the ordering of a gross sum for costs at [12]:-

5. [21]

   At the date of Ms Mainhoff’s affidavit, the defendant’s costs were $315,682 in solicitors’ fees, $755,301.87 in disbursements (including counsels’ fees) and GST of $105,470.69. Total costs were therefore $1,176,454.56 or $1,071,283.87 exclusive of GST. The defendant seeks $800,000 as a gross costs sum order, discounted as follows:-

   1. (1)

      Applying a 20% discount on all solicitors’ costs, that is solicitors’ fees and disbursements (exclusive of GST) up to 1 May 2024 to reflect the likely difference between solicitor/client costs and party/party costs ($284,884.59);

   2. (2)

      Add solicitor costs, that is solicitors’ fees and disbursements (exclusive of GST) from 2 May 2024 to date ($714,878.13);

   3. (3)

      Total solicitor/client costs $999,762.72 (exclusive of GST);

   4. (4)

      Apply a 20% discount on all costs and disbursements (exclusive of GST) to reflect the avoidance of time and costs associated with a costs assessment ($799,810.18, rounded up to $800,000).

6. [22]

   I observe that in her affidavit, upon which she was not cross-examined, Ms Mainhoff says that based on her experience as a solicitor over 30 years, she believes that if the matter were to proceed to a costs assessment, the defendant would likely recover costs exceeding the amount sought as a gross sum.

7. [23]

   In my opinion, this case is appropriate for the making of a gross sum costs order. First, I am able to ascertain a fair sum based on the documents contained in Ms Mainhoff’s affidavit. Second, there is every likelihood that any costs assessment would be protracted and expensive bearing in mind the significant length and complexity of the case. So much is apparent from the plaintiff’s recent costs offer. Third, acknowledging the modest charge-out rates for both solicitors and counsel, the discounts applied by the defendant are to my mind substantial. I do not doubt that the gross sum sought is likely to be less than that which the defendant would recover in a costs assessment. Fourth, I acknowledge that as the plaintiff owns only one piece of residential property in Albury as a joint tenant with her husband, which is mortgaged to the ANZ bank, she likely will have an inability to meet a costs order.

8. [24]

   Exercising my discretion pursuant to s 98 (4) of the Civil Procedure Act 2005, I therefore allow $800,000 as a specified gross sum in lieu of assessed costs.

Orders

1. [25]

   I make the following orders:-

   1. (1)

      The plaintiff is to pay the defendant’s costs of and incidental to the proceedings on an indemnity basis from 3 May 2024 and otherwise on the ordinary basis pursuant to rules 20.26(3)(a) and 42.15A of the Uniform Civil Procedure Rules 2005 (NSW); and

   2. (2)

      The plaintiff is to pay the defendant’s costs of and incidental to the proceedings, including the costs of this application, in a lump sum of $800,000 pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW).