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
Category: Costs Parties: Vicki Maree Doughty (Plaintiff)
Terrence Hillier (Defendant)Representation: Counsel:
Solicitors:
J Hillier (Plaintiff)
J Downing SC (Defendant)
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…
Continue reading Doughty v Hillier (No 2)
Sign in free to access the full text
- AGLC
- Doughty v Hillier (No 2) [2024] NSWSC 1484
- Case
- [2024] NSWSC 1484
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.