Donald v Kent
[2002] NSWSC 690
•2 August 2002
CITATION: Donald v Kent & Ors [2002] NSWSC 690 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S): SC 20214/01 HEARING DATE(S): 2 August 2002 JUDGMENT DATE: 2 August 2002 PARTIES :
Ms Catherine Clare Donald
Dr Chester Kent
Northern Sydney Area Health Service
Dr Carol Pollock
JUDGMENT OF: Sperling J at 1
COUNSEL : Mr R O'Keefe for the Plaintiff
Mr G Gemmell for the Second DefendantSOLICITORS: Slater & Gordon Lawyers for the Plaintiff
Blake Dawson Waldron for the First Defendant
Government Insurance Office of NSW for the Second Defendant
Ebsworth & Ebsworth for the Third DefendantCATCHWORDS: Interrogatories - costs - no question of principle DECISION: (1) The second defendant is to answer the plaintiff's notice to answer the amended interrogatories by 30 August 2002; (2) The parties have liberty to apply on one day's notice.
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
Professional Negligence Lis t
Sperling J
Friday, 2 Aug 2002
Judgment20214/01 Catherine Clare Donald v Dr Chester Kent & 2 Ors
1 His Honour: Mediation has been fixed for 12 September 2002. There is no agreement as to the form of interrogatories to be answered by the second defendant at the request of the plaintiff. The plaintiff asks for an order that the interrogatories be answered by 30 August allowing fourteen days for final preparation of the plaintiff's position paper. It will be necessary for the defendant to contact four persons who are no longer in the employment of the second defendant, raising some uncertainty about the practicability of answers by the date sought.
2 I propose to make the order that is sought but to give liberty to the second defendant to apply for an extension at that time in the event that best efforts do not make answer by that date practicable.
3 If that liberty to apply is to be exercised, it should be done by notice to my associate and I will list the matter before me one morning at 9.15am.
4 I make the following orders:
(2) The parties have liberty to apply on one day's notice.
(1) The second defendant is to answer the plaintiff's notice to answer the amended interrogatories by 30 August 2002.
5 On 12 June 2002 the plaintiff filed a notice of motion seeking orders that the second defendant answer interrogatories. As a result of discussion between the legal representatives of the parties, a somewhat shorter form of interrogatory was ultimately agreed. In consequence of that, I have made a consent order today for answers to be given to the interrogatories as agreed. On behalf of the plaintiff an order is sought that the costs of the notice of motion should be costs in the cause.
6 On behalf of the second defendant it is submitted that there should be no order as to costs with the intent that each party would pay their own costs of the notice of motion. My analysis of what has occurred is that the second defendant has been put to work and expense in order to achieve what is ultimately agreed to be a reasonable and shorter ambit of interrogation, nevertheless, it appears, having taken a position where it opposes an order for interrogatories in principle. That being the case, I think it is appropriate that each party should bear its own costs of the notice of motion. Accordingly, I make no further order with the intent that each party will bear its own costs of the notice of motion.
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