George v Biggs (No 2)

[2015] NSWDC 43

District Court

New South Wales

Medium Neutral Citation:

George v Biggs & Anor (No 2) [2015] NSWDC 43

Hearing dates:

2 April 2015

Date of orders:

17 April 2015

Decision date:

17 April 2015

Jurisdiction:

Civil

Before:

Levy SC DCJ

Decision:

1.  The interim stay previously ordered to expire at 4.00pm on 2 April 2015 is extended to 4.00pm on Monday 25 May 2015 pending any further order of the Court of Appeal in the event that a notice of appeal is filed;

2.  In the event that no notice of appeal is filed before 25 May 2015, the stay the subject of Order 1 will discharge;

3.  No later than 28 days after today’s date, the defendants are to pay the witness expenses of Professor Havas in the assessed sum of $31,350 including GST to compensate him for the losses he has incurred in complying with the subpoena served on him on 29 August 2014;

4.  The costs of the plaintiff’s notice of motion filed on 1 April 2015, by which Order (3) above was sought, are to be paid by the defendants on the ordinary basis unless otherwise ordered;

5.  Liberty to apply on 7 days notice if further or other orders are required.

Catchwords:

PRACTICE & PROCEDURE – stay pending appeal; COSTS – expert witness expenses – defendants disputed expenses claimed by plaintiff’s expert in complying with subpoena issued by defendants requiring the expert to attend the trial for cross-examination – application granted for the expenses of an expert witness to be paid by the defendants

Legislation Cited:

Civil Procedure Act 2005, s 3, s 16, s 56, s 58(1), s 62, s 97, s 98
Legal Profession Act 2004, s 364
Uniform Civil Procedure Rules 2005, r 31.31, r 33.11

Cases Cited:

Alexander v Cambridge Credits Corporation Limited 2 [1985] 2 NSWLR 685
Danieletto v Khera (1995) 35 NSWLR 684
Franklins Pty Ltd v Endeavour Holdings Pty Ltd [2013] NSWSC 1204
Foyster v Foyster Holdings [2003] NSWSC 881
George v Biggs & Anor [2015] NSWDC 11
J Aron Corporation v Newmont Yandal Operations [2004] NSWSC 996
Re Dovico; Ex Parte Mayne Wetherall [2012] NSWSC 823

Category:

Procedural and other rulings

Parties:

Sandra George (Plaintiff)
Nigel Biggs (First defendant)
St Vincent's Hospital Sydney Limited (Second defendant)

Representation:

Counsel:
Mr J Anderson (Plaintiff)
Ms L Young (Defendants)

Solicitors:
Martin Bell & Co (Plaintiff)
TressCox Lawyers (Defendants)

File Number(s):

2012/372183

Publication restriction:

None

Judgment

Table of Contents

Background	[1] – [2]
Application for extension of interim stay	[3] – [7]
Application for payment of witness expenses	[8] – [18]
Factual evidence adduced on the motion	[19] – [68]
Submissions of the parties	[69] – [74]
Relevant legislation and authorities	[75] – [81]
Consideration	[82] – [117]
Disposition	[118]
Costs	[119]
Orders	[120]

Background

1. On 24 February 2015, the principal judgment was delivered in these proceedings involving professional negligence, resulting in the entry of judgment for the plaintiff against both defendants in the sum of $330,999.85, with the plaintiff’s costs…