Lee v Kennedy

[2001] NSWCA 8

CITATION:	Lee v Kennedy & Ors [2001] NSWCA 8
FILE NUMBER(S):	CA 41033/98
HEARING DATE(S):	7 February 2000
JUDGMENT DATE:	8 February 2001
PARTIES :	Susan Lee v Gary Kennedy, Anthony Bordin, Robert Krause and The State of New South Wales
JUDGMENT OF:	Priestley JA at 1; Sheller JA at 1; Beazley JA at 1

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 78/97
LOWER COURT JUDICIAL OFFICER :	His Honour Judge Delaney

COUNSEL:	Appellant - A.B. Shand QC / B. Kinsella Respondents - B. Donovan QC / C. Lonergan
SOLICITORS:	Appellant - James Fuggle Solicitors, Lismore Respondents - I.V. Knight, State Crown Solicitor
CATCHWORDS:	Judgment on costs following delivery of judgment on 26 June 2000
LEGISLATION CITED:	District Court Rules Part 39A rule 25(4)
CASES CITED:	Commonwealth of Australia v Murray (1988) Aust Torts Reports [80-207] Fotheringham v Fotheringham (1999) 46 NSWLR 194
DECISION:	Judgment on costs following delivery of judgment on 26 June 2000

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 41033/98

DD 78/97

PRIESTLEY JA

SHELLER JA

BEAZLEY JA

Friday, 22 December 2000

LEE v KENNEDY & ORS

1    THE COURT: When the court reserved judgment in this appeal we were asked not to make costs orders until the parties had a chance to make submissions about them after considering the reasons for judgment. Accordingly, when judgment was delivered, no costs orders were made and the parties were directed to file written submissions on costs.

2 In the written submissions for the plaintiff/appellant it was stated that in the District Court proceedings the appellant had served upon the respondents an offer of compromise dated 30 April 1998 pursuant to Pt 19A of the District Court Rules, in the sum of $50,000 plus costs.

3    It appears from the notice of appeal that the dates of hearing of the trial were 23, 24 and 25 September 1998 and 16 and 17 November 1998, judgment being delivered on 4 December 1998. The trial judge awarded the appellant $40,000.

4    In the appeal, the court held that the trial judge should have found that the appellant had established more causes of action than he found. The court also increased the damages to $170,000.

5 For the appellant it was submitted that she should have an order for indemnity costs of the appeal, and also indemnity costs of the District Court action from 30 April 1998. (The correct term so far as concerns the District Court is not indemnity costs but solicitor and client costs: District Court Rules Part 39A r 25(4).)

6    In the respondent’s submissions on costs, no issue was taken with any of the facts we have noted above, but the orders sought were opposed on the single ground that the judgment entered by this court in the appellant’s favour

“ only exceeded the offer because of the quite unusual award of punitive damages. The punitive damages amount awarded was very much higher than had previously been awarded in any…