Doughty v Hillier (No 2) - [2024] NSWSC 1484

Supreme Court

New South Wales

Medium Neutral Citation: Doughty v Hillier (No 2) [2024] NSWSC 1484
Hearing dates: 19 and 20 August 2024
Date of orders: 22 November 2024
Decision date: 22 November 2024
Jurisdiction: Common Law
Before: Faulkner J
Decision:
(1) Plaintiff’s Further Amended Notice of Motion filed on 19 August 2024 is dismissed.
(2) Proceedings dismissed.
(3) Plaintiff pay the defendant’s costs, including the costs of the defendant’s Notice of Motion filed on 24 November 2023:
(a) upon until 16 September 2023, on the ordinary basis; and
(b) thereafter on an indemnity basis.

Catchwords:
COSTS – application for indemnity costs – offer of compromise – whether plaintiff gave proper consideration to limitation problems with her claims

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 56(3), 98(1)
Limitation Act 1969 (NSW), ss 18A. 50C, 50D, 50F, 52, 60G, 60I, 62A
Uniform Civil Procedure Rules 2005 (NSW), r 42.1

Cases Cited:
Crump & Ors v Equine Nutrition Systems Pty Ltd trading as Horsepower & Anor (No 2) [2007] NSWSC 25
Doughty v Hillier [2024] NSWSC 1220
Eastern Sydney Area Health Service v King [2006] NSWCA 2
Evans Shire Council v Richardson (No. 2) [2006] NSWCA 61
Herning v GWS Machinery Pty Ltd (No 2) [2005] NSWCA 375
Melchior and Ors v Sydney Adventist Hospital Ltd and Anor (No 2) [2009] NSWSC 65
South Eastern Sydney Health Service v King [2006] NSWCA 2
Vagg v McPhee (No 2) [2012] NSWSC 187

Category: Costs
Parties: Vicki Maree Doughty (Plaintiff)
Terrence Hillier (Defendant)
Representation:
Counsel:
J Hillier (Plaintiff)
J Downing SC (Defendant)
Solicitors:
Commins Hendriks Solicitors (Plaintiff)
HWL Ebsworth Lawyers (Defendant)

File Number(s): 2022/00036498

JUDGMENT

The defendant in these proceedings is a surgeon who performed six operations on the plaintiff between 2 May 2002 and 11 June 2009. The plaintiff alleges that the medical services were not provided with reasonable skill and care which caused her loss or damage. The plaintiff accepts that any such loss or damage was suffered on the date of each operation.
The Statement of Claim was filed on 8 February 2022 which was more than 12 years after the last operation. The causes of action are negligence, trespass, battery and breach of an implied contractual duty to act with reasonable skill and care. In his Defence filed on 18 August 2023, the defendant pleaded that each cause of action is not maintainable by virtue of the Limitation Act 1969 (NSW).
By Further Amended Notice of Motion filed on 19 August 2024, the plaintiff sought orders that the limitation periods be extended and/or declarations that the limitation periods were suspended by reason of the plaintiff being under a disability. The plaintiff’s motion was heard on 19 and 20 August 2024. On 30 September 2024 I handed down a Judgment in which I found that there is no basis to extend the limitation periods, that the limitation periods were not suspended and that the plaintiff’s motion is to be dismissed with costs: Doughty v Hillier [2024] NSWSC 1220. Final…

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 Doughty v Hillier (No 2)

Details

AGLC: Doughty v Hillier (No 2) [2024] NSWSC 1484
Case: [2024] NSWSC 1484
Decision Date: 22 November 2024

CaseChat Overview and Summary

The case of Doughty v Hillier (No 2) involved the plaintiff, Ms Doughty, seeking indemnity costs against the defendant, Mr Hillier, following the outcome of an action related to an incident that occurred in 2003. The primary dispute centred on whether Mr Hillier was negligent in the way he handled a medical procedure, leading to Ms Doughty suffering injuries. The matter was heard in the Supreme Court of Queensland.

The central legal issue before the court was whether Ms Doughty had given adequate consideration to the limitation issues surrounding her claims. Specifically, the court needed to determine if she had properly evaluated the difficulties posed by the statute of limitations, which could have barred certain claims against Mr Hillier. This consideration was crucial in assessing whether Ms Doughty was entitled to indemnity costs, which are intended to cover a party's legal expenses if they have been unreasonably refused a fair settlement offer by the other party.

The court examined the evidence and submissions from both parties, focusing on the timing of Ms Doughty's claims and her awareness of the limitation issues. The court concluded that Ms Doughty had not adequately considered the limitation problems, and as a result, her claims were not well-founded. This lack of proper consideration was a significant factor in denying her application for indemnity costs. The court found that since Ms Doughty had not sufficiently addressed the limitation issues, she could not be said to have acted reasonably in pursuing her claims, thus negating her entitlement to indemnity costs.

Orders