Michel Andre Galbes v Cameron Fraser Anderson [1997] ACTSC 75 (3 October 1997)

SUPREME COURT OF THE ACT

MICHEL ANDRE GALBES v. CAMERON FRASER ANDERSON
No. SC 208 of
1993
Number of pages - 2

Costs

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

MASTER CONNOLLY

CATCHWORDS

Costs - Personal Injury Claim - Motor Vehicle Accident - Judgment entered for the plaintiff - Two adjournments in the course of the hearing - Plaintiff sought adjournment to amend statement of particulars - Defendant sought adjournment as witnesses not available - Party seeking adjournment to pay other party's costs.

HEARING

CANBERRA, By way of written submissions (hearing), 3 October 1997 (decision)

3:10:1997

Counsel for the Plaintiff: Mr D Kennedy

Instructing Solicitors: Elrington Boardman Allport

Counsel for the Defendant: Mr R Crowe

Instructing Solicitors: Deacons Graham & James

ORDER

THE COURT ORDERS THAT:

1. The plaintiff is to pay the defendant's costs thrown away by reason of the adjournment on 28 April 1997.

2. The defendant is to pay the plaintiff's costs thrown away by reason of the adjournment on 14 August 1997.

3. Otherwise, the defendant to pay the plaintiff's costs.

DECISION

MASTER CONNOLLY

In this matter I awarded the plaintiff damages in the sum of $171,636.49 in a decision on 4 September 1997. While the normal rule is that costs follow the event, there had been two adjournments in the course of the hearing of this matter, and I reserved the question of costs in order to allow the parties to make submissions. I agreed that it would be an appropriate course to allow the parties to make written submissions, and these were served and exchanged by the end of the week ending 19 September 1997.

The first adjournment occurred on 28 April 1997. On that occasion the plaintiff sought leave to amend the statement of particulars to include a claim for a pars interarticularis defect. Counsel for the defendant urged at the time that it would need to undertake additional investigations as a result of this amendment. Counsel for the plaintiff argued that this condition had been referred to in previous medical reports, and that accordingly there was no need for the defendant to undertake additional investigations, and said in submissions on costs that one of these further investigations in fact resulted in the relevant expert referring back to his original report. Counsel for the defendant says that following the adjournment it obtained a considered report from two doctors, which were tendered at the hearing, and obtained the clinical file of a former treating doctor.

Where a new condition is particularised, it is appropriate for the other party to obtain further expert opinion, even where the condition may have been referred to in previous reports. Counsel should not be placed in a position where, when a new injury is particularised, they are expected to themselves form a view on the basis of their previous investigations as to whether the existing body of expert material answers a new claim.

It normally follows that a party seeking an indulgence, such as a late change in particulars, will have to bear the costs thrown away by the other side in granting such indulgence. I see no reason why the normal rule should not be followed here.

The matter proceeded to hearing on 13 August 1997. After the first day of hearing the defendant sought an adjournment because two witnesses were not available on that day. One was a medical expert, and the other, a passenger in the defendant's vehicle at the time of the accident the subject of proceedings, was representing Australia in an international swimming competition. Counsel for the plaintiff argues that this adjournment was at the behest of the defendant and was through no fault of the plaintiff, and that accordingly the party seeking the indulgence, in this case the adjournment, is required to pay the costs. Counsel for the defendant argued that these witnesses could both have been called if the matter had proceeded on the original dates in April, and that their unavailability in August was a consequence of the original adjournment.

When the matter was originally adjourned liberty was given to the parties to approach the clerk to the judges to relist the matter at a mutually agreeable time. This was fixed for August 13. That the defendant became aware as the hearing resumed that there would be difficulties with witnesses is no fault of the plaintiff, and so the ordinary rule should apply.

It follows that the plaintiff is to pay the defendant's costs thrown away by reason of the adjournment on 28 April 1997, and the defendant is to pay the plaintiff's costs thrown away by reason of the adjournment of 14 August 1997, and that otherwise the plaintiff is to have his costs.