Fan v South Eastern Sydney and Illawarra Area Health Service (No 2)

In the matter of Fan v South Eastern Sydney and Illawarra Area Health Service (No 2), the plaintiff sought to recover costs incurred in defending a motion to dismiss professional negligence proceedings against the defendant, the health service. The Federal Circuit and Family Court of Australia was tasked with determining the appropriate costs following the plaintiff's successful defence of the motion. The primary legal issue before the court was whether the defendant should bear the costs of the motion to dismiss, given the plaintiff's successful defence of the motion, and whether these costs should be treated as costs in the cause.

The court found that the defendant's motion to dismiss was both premature and inappropriate, as it was based on insufficient information and failed to consider relevant facts. The court held that the defendant should bear the costs of the motion. Additionally, the court addressed the issue of costs associated with the plaintiff's decision to amend the statement of claim. The court determined that the costs of the amendment were costs in the cause, as the plaintiff's decision to amend was connected to information that was unavailable to the plaintiff but in the possession of the defendant. Furthermore, the court considered the plaintiff's decision to commence the proceedings without a solicitor, and granted leave nunc pro tunc pursuant to UCPR 7.14(2).

In conclusion, the court ordered the defendant to pay the plaintiff's costs of the motion to dismiss, as well as the costs of the amendment to the statement of claim. The court also granted the plaintiff leave to amend the notice of appearance nunc pro tunc, ensuring that the plaintiff could continue the proceedings without prejudice. This decision underscores the importance of considering the availability of information and the appropriateness of motions to dismiss in professional negligence cases, as well as the court's willingness to grant leave in exceptional circumstances.