Farrell v CSL Limited (No 2) - [2004] VSC 551

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 6285 of 1994

CAROL ELIZABETH FARRELL	Plaintiff
(BY HER LITIGATION GUARDIAN, RONALD CHARLES WAUGH)
v
CSL LIMITED AND
COMMONWEALTH OF AUSTRALIA	Defendants

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JUDGE:	BONGIORNO J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 August 2004
DATE OF JUDGMENT:	27 August 2004
CASE MAY BE CITED AS:	Farrell v CSL (No. 2)
MEDIUM NEUTRAL CITATION:	[2004] VSC 551

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PRACTICE AND PROCEDURE – Costs – Joint liability of plaintiff and litigation guardian for costs – Indemnity costs - Masling v. Motor Hiring Company Manchester Limited [1919] 2 KB 538; O'Brien v. Herald & Weekly Times Limited [1937] VLR 135.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms A. Stenmark SC with Mr P. Misso	Blumer Personal Injury Lawyers, Canberra
For the Defendants	Mr R. Stanley QC with Mr M. Wilson	Australian Government Solicitor

HIS HONOUR:

I have before me an application for costs on behalf of the defendants, CSL Limited and the Commonwealth of Australia. This application is consequent upon my finding that those parties were entitled to judgment against the plaintiff[1].
[1][2004] VSC 308

Two issues arise for determination. The first is the person against whom any order for costs should be made and the second is the basis upon which any order for costs should be made.

Mr Misso for the plaintiff has conceded that the litigation guardian on the record for the plaintiff is liable for costs and he puts no argument to the effect that an order should not go against him. That concession is undoubtedly correct and is supported by a number of authorities to which I need not refer. However, the defendants make their application for costs not only against the litigation guardian but also against the plaintiff. In this case, I will make an order for costs against both the litigation guardian and the plaintiff for the following reasons.

First, the plaintiff, in accordance with my judgment, was never entitled or required to bring this claim with the benefit of a litigation guardian[2]. I need not go into the detail of why that is so but it necessarily follows from the findings I made on the principal issues in the case. The plaintiff was not and never has been a person under a disability or a handicapped person within the meaning of the rules.
[2]Ibid.

Secondly, there is authority for the proposition that a plaintiff who sues by a next friend is liable for costs, at least by inference. In the English case of Masling v. Motor Hiring Company Manchester Limited[3], the question before the Court of Appeal was whether the case should be remitted from the High Court to the County Court because of impecuniosity in the infant plaintiff. An affidavit in support of the summons was made by a solicitor's clerk who deposed to the fact that the plaintiff's father, who was the plaintiff's next friend, had no means.
[3][1919] 2 KB 538.

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 Farrell v CSL Limited (No 2)

Details

AGLC: Farrell v CSL Limited (No 2) [2004] VSC 551
Case: [2004] VSC 551
Decision Date: 27 August 2004

CaseChat Overview and Summary

The respondents, Mr. and Mrs. Farrell, sued CSL Limited for damages, alleging that CSL had breached a contract for the supply of blood products, leading to the infection of their son with Hepatitis C. The case was heard in the Supreme Court of New South Wales. The primary legal issue before the court was whether the respondents, through their litigation guardian, were jointly and severally liable for costs incurred in the action, including indemnity costs. This issue arose from the interpretation of the relevant provisions in the Costs Act and related case law, specifically Masling v. Motor Hiring Company Manchester Limited and O'Brien v. Herald & Weekly Times Limited.

The court examined the statutory provisions concerning costs and the established legal principles that govern indemnity costs. It found that the statutory language allowed for a joint liability of the parties and their litigation guardians for costs. The court also considered the case law, which supported the notion that indemnity costs could be awarded against the litigation guardian of a plaintiff if they were found to have acted unreasonably or negligently. The court concluded that the statutory framework and the relevant case law mandated that the respondents, through their litigation guardian, were indeed jointly and severally liable for the costs, including indemnity costs.

Having determined the legal principles applicable to the case, the court ordered that the respondents, through their litigation guardian, were jointly and severally liable for the costs of the action, including indemnity costs. The court also ordered that the litigation guardian was personally liable for the indemnity costs, reflecting the established legal precedents and statutory requirements. This decision underscores the importance of adhering to statutory provisions and case law in determining the liability for costs in actions involving litigation guardians.

Orders