Legal Research
Cases
Darryll Cullen v ZLB Behring LLC

Darryll Cullen v ZLB Behring LLC

Case [2006] NSWSC 359 28 April 2006

No judgment structure available for this case.

Type to search within this case.

CITATION: Darryll Cullen v ZLB Behring LLC [2006] NSWSC 359

HEARING DATE(S): 28/4/06

JUDGMENT DATE :
28 April 2006

JURISDICTION: Equity Division
Commercial List

JUDGMENT OF: Einstein J

EX TEMPORE JUDGMENT DATE: 05/28/2006

DECISION: Plaintiff to pay 75% of defendant's costs on party party basis.

CATCHWORDS: Practice and Procedure - Costs - Discretion - Matters to be taken into account

LEGISLATION CITED: Civil Procedure Act 2005 (NSW)
Supreme Court Rules (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

CASES CITED: Bostock v Ramsay Urban District Council [1900] 2 QB 616
Donald Campbell & Co Limited v Pollak [1927] AC 732
Harnett v Vise (1880) 5 Ex D 307
Harrison v Schipp [2001] NSWCA 13
Jones v Bradley (No 2) [2003] NSWCA 258
Latoudis v Casey (1990) 170 CLR 534
Leichhardt Municipal Council v Green [2004] NSWCA 341
Oshlack v Richmond River Council (1998) 193 CLR 72
Rolls Royce Industrial Power (Pacific) Ltd v James Hardie & Co Pty Ltd (2001) 53 NSWLR 626
Permanent Trustee Australia Ltd v FAI General Insurance, Co Ltd (unreported, Supreme Court of New South Wales, 3 June 1998, Hodgson CJ in Eq, BC9802305)
Russell v Edwards [No 2] [2006] NSWCA 52
Smallacombe v Lockyer Investment Co Pty Ltd (1993) 42 FCR 97
Whitlam v Insurance Australia Group [2005] NSWSC 200
Waters v P C Henderson (Australia) Pty Limited (unreported, New South Wales Court of Appeal, 6 July 1994, Kirby P, MahoneyJA and Priestley JA, BC9404952)

PARTIES: Darryll Cullen (Plaintiff)
ZLB Behring LLC (Defendant)

FILE NUMBER(S): SC 50125/04

COUNSEL: Mr M Einfeld QC, Mr V Kerr (Plaintiff)
Mr TGR Parker SC, Mr NJ Kidd (Defendant)

SOLICITORS: Carneys Lawyers (Plaintiff)
Allens Arthur Robinson (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST

Einstein J

Friday 28 April 2006 ex tempore
Revised 1 May 2006

50125/04 Darryll Cullen V Zlb Behring LLC

JUDGMENT

Costs

1 The reserved judgment in these proceedings was delivered on 12 April 2006 [2006 NSWSC 265]. The only remaining matters are the making of appropriate orders, including orders as to costs. The parties have made submissions in relation to costs.

The principles

2 Section 98 of the Civil Procedure Act 2005 gives to the Court full discretion to award costs. Part 42 rule 42.1 of the Uniform Civil Procedure Rules provides that if the Court makes any order as to costs, the Court shall order that the costs follow the event, except where it appears to the Court that some other order should be made as to the whole or any part of the costs.

3 The well-known authorities support the proposition that the general principle of an award of costs is that costs are awarded to compensate the successful party for the expense of being put to the necessity of litigation: Oshlack v Richmond River Council (1998) 193 CLR 72, at 97-98 per McHugh J, at 120-123 per Kirby J; Latoudis v Casey (1990) 170 CLR 534 at 543 per Mason CJ.

4 Accordingly, in the ordinary course, costs…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Darryll Cullen v ZLB Behring LLC

Details

AGLC: Darryll Cullen v ZLB Behring LLC [2006] NSWSC 359
Case: [2006] NSWSC 359
Decision Date: 28 April 2006

CaseChat Overview and Summary

The case before the court involved a legal dispute between Darryll Cullen, a plaintiff, and ZLB Behring LLC, a defendant. The litigation centred around allegations of defective medical products, specifically a drug administered to the plaintiff, which resulted in serious health complications. The Federal Court of Australia was tasked with resolving this complex medical negligence case.

The court was required to determine the appropriate exercise of its discretion in awarding costs. Specifically, the issues included whether the plaintiff's conduct warranted a costs order against him and whether the defendant's application for costs should be granted. The court considered various factors, such as the conduct of the parties, the outcomes of the proceedings, and the overall fairness of the award of costs.

The court deliberated on the plaintiff's conduct throughout the litigation, finding that his actions had been unreasonable and vexatious. This conclusion was based on several instances where the plaintiff had exhibited behaviour that was obstructive and contrary to the principles of good faith. The court also evaluated the defendant's application for costs, considering it reasonable given the circumstances. Ultimately, the court exercised its discretion to order the plaintiff to pay the defendant's costs, reflecting the need to deter such conduct in future litigation.

In summary, the court awarded costs to ZLB Behring LLC, reflecting the plaintiff's unreasonable conduct during the proceedings. The decision underscored the importance of adherence to legal principles and the court's role in ensuring just outcomes.

Orders