Greenfield v Sydney Local Health District t/as Royal Prince Alfred Hospital (No 2)

[2020] NSWSC 1608

Supreme Court

New South Wales

Medium Neutral Citation:

Greenfield v Sydney Local Health District t/as Royal Prince Alfred Hospital (No 2) [2020] NSWSC 1608

Hearing dates:

On the papers

Date of orders:

13 November 2020

Decision date:

13 November 2020

Jurisdiction:

Common Law

Before:

Harrison AsJ

Decision:

The Court orders that:

(1) The plaintiff is to pay the defendant’s costs on an ordinary basis.

Catchwords:

Costs – No point of principle

Legislation Cited:

Limitation Act 1969 (NSW), s 60H

Uniform Civil Procedure Rules 2005 (NSW), r 42.1

Cases Cited:

Greenfield v Sydney Local Health District t/as Royal Prince Alfred Hospital [2020] NSWSC 1479

Northern Territory of Australia v Sangare (2019) 265 CLR 164; (2019) 372 ALR 117; [2019] HCA 25

Oshlack v Richmond River Council (1998) 193 CLR 72; (1998) 152 ALR 83

Category:

Costs

Parties:

Susana Greenfield (Plaintiff)
Sydney Local Health District t/as Royal Prince Alfred Hospital (Defendant)

Representation:

Counsel:
C Faunt (Defendant)

Solicitors:
Self-Represented (Plaintiff)
Hicksons Lawyers (Defendant)

File Number(s):

2019/127648

Publication restriction:

Nil

Judgment

1. HER HONOUR: On 27 October 2020, I handed down judgment in Greenfield v Sydney Local Health District t/as Royal Prince Alfred Hospital [2020] NSWSC 1479. I dismissed the plaintiff’s summons filed 24 April 2019 and her statement of claim filed 2 October 2019. Costs were reserved.

2. On 29 October 2020, orders were made that the defendant provide short written submissions on costs by 5 November 2020 and that the plaintiff do the same by 12 November 2020. I have now received those submissions.

Background

3. By statement of claim filed 2 October 2019, the plaintiff sought damages in the amount of $1,408,878.00 plus interest and filing fees for a “Registered Nurse’s Income and Superannuation Loss”; “22 years of Pain and Sufferings from Physical and Psychological Damages”; loss of spousal consortium; and loss of parental consortium for the deceased’s daughter.

4. On 11 December 2019, the plaintiff filed a notice of motion seeking “Considerations for extending the statute of limitation”; and “Considerations to waive fees”.

5. On 3 February 2020, the plaintiff filed a notice of intention to appeal, which the defendant accepted functioned as the plaintiff’s application for an extension of time to commence proceedings.

6. The plaintiff deposed (Aff, 30 April 2020) that she relied upon s 60H of the Limitation Act 1969 (NSW).

7. On 21 September 2020, the plaintiff’s application came before me. On 27 October 2020, I handed down judgment dismissing both the plaintiff’s summons filed 24 April 2019 and her statement of claim filed 2 October 2020.

The defendant’s submissions

8. The defendant submitted that an order should be made pursuant to rule 42.1 of the Uniform Civil Procedure Rules (“UCPR”) that the plaintiff pay the defendant’s costs of the substantive proceedings and of the application to extend time in which to commence proceedings pursuant to the Limitation Act: see Oshlack v Richmond River Council (1998) 193 CLR 72; (1998) 152 ALR 83 at [67].

9. The defendant was obliged to defend the proceedings and has incurred costs and disbursements in doing so. The plaintiff relied upon and served multiple and prolix affidavits with substantial annexures, which the defendant was obliged to consider, receive advice upon and to respond to.

10. The plaintiff says that she is a poor widow and should not be subject to any costs order (Aff, 3 February 2020, Annexure “E”, p 8). The defendant submitted that whether a party is rich or poor has no relevant connection to the litigation or to the exercise of the Court’s discretion in making an order for costs: see Northern Territory of Australia v Sangare (2019) 265 CLR 164; (2019) 372 ALR 117; [2019] HCA 25 at [26] to [33] and [35].

11. The defendant submitted that no good reason has been proffered for the displacement of the general rule that costs follow the event.

The plaintiff submissions

12. The plaintiff submitted that due to extreme financial hardship, all court fees be waived. She requested that the following costs orders be made:

1. The plaintiff pay the defendant’s costs incidental to the proceedings; and

2. The plaintiff pay the defendant’s costs incidental to the plaintiff’s application to extend time in which to commence proceedings.

13. The plaintiff provided the following attachments to her submissions:

1. “(i)   Centrelink benefit per fortnight;

1. Bank account records’

2. Expenditures (rents/bills/others) including especially the

3. Plaintiff’s fortnightly food and medicine support for seriously ill brother in the Philippines and family members.”

Conclusion

14. Costs are discretionary. The general rule is that costs follow the event. UCPR 42.1 provides that if the court makes any order as to costs, it is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs.

15. The plaintiff has submitted that all fees should be waived because due to her “extreme financial hardship”. Notwithstanding the plaintiff’s poor financial position, it is my view that she should pay the defendant’s costs on an ordinary basis. This is because the defendant was obliged to defend the proceedings and the application to extend time. The defendant has incurred costs and disbursements as a result of the plaintiff’s litigation, which it would not have incurred if the litigation had not been brought.

Result

16. The result is that the plaintiff is to pay the defendant’s costs on an ordinary basis.

The Court orders that:

1. The plaintiff is to pay the defendant’s costs on an ordinary basis.

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Decision last updated: 13 November 2020