Hawkesbury District Health Service Ltd v Chaker (No 2)

In Hawkesbury District Health Service Ltd v Chaker (No 2), the Court of Appeal of New South Wales considered an application to vary previous costs orders made in an appeal. The appellant, Hawkesbury District Health Service Ltd (the Hospital), had been partially successful on appeal, but had abandoned one ground of appeal and failed on a separable ground. The respondent, Dr Chaker, had also been successful in certain aspects of the appeal.

The primary legal issues before the Court of Appeal were whether the general rule that costs follow the event should be departed from, and if so, how the costs should be apportioned. This involved considering the effect of the abandonment of a ground of appeal and the non-compliance with Uniform Civil Procedure Rules 51.36 regarding the filing of written submissions and a narrative statement. The Court also had to determine the appropriate basis for awarding costs, including whether an indemnity basis should apply to any part of the appeal.

The Court reasoned that while the general rule of costs following the event applied, the specific circumstances warranted a departure. The abandonment of a ground of appeal by the appellant meant that the respondent should not bear the costs associated with that abandoned ground. Furthermore, the non-compliance with the UCPR in filing submissions and a narrative statement justified an order that the respondent should not recover the costs associated with those particular documents. The Court also considered the Hospital's partial success and the respondent's overall position in determining the apportionment of costs.

Consequently, the Court varied the previous costs orders. The respondent was ordered to pay Dr Tompsett's costs of the appeal, excluding the costs of the specific written submissions and narrative statement filed by Dr Tompsett. The Hospital was ordered to pay the respondent's costs of its application for leave to appeal and its appeal concerning costs, with costs to be on an ordinary basis up to a specified date and on an indemnity basis thereafter. The Court also made orders regarding the application of UCPR 42.34 and the determination of factual questions in a subsequent hearing.