Locke v Bova [No 2] - [2005] NSWSC 799

CITATION:
Locke v Bova & Anor [No 2] [2005] NSWSC 799

HEARING DATE(S): 05/08/05

JUDGMENT DATE :

10 August 2005

JURISDICTION:
Common Law Division
Professional Negligence List

JUDGMENT OF:
Kirby J

DECISION:
(1) The plaintiff should have indemnity costs in respect of costs incurred after 13 November 2002; (2) The plaintiff should have the costs of this Motion.

CATCHWORDS:
Application for indemnity costs - offer of compromise - prima facie right to indemnity costs - subject to Court's discretion - suggestion that plaintiff's case changed after offer - whether realistic assessment of plaintiff's case showed change "on the cards" - later Calderbank letter - entitled to indemnity costs.

CASES CITED:
Locke v Bova & Anor [2004] NSWSC 534
Bova v Locke [2005] NSWCA 226
Messiter v Hutchinson (1987) 10 NSWLR 525
Calderbank v Calderbank (1975) 3 WLR 5&6
Van Doore v Mendez & Ors [No 2] (unreported, 30.6.97)
Maitland Hospital v Fisher [No 2] (1992) 27 NSWLR 721
Smec Testing Services v Campbelltown City Council [2000] NSWCA 323

PARTIES:
Dr Peter Locke (Pl/Appl)
Dr Colin Bova (1st Def/Resp)
South Western Sydney Area Health Service (2nd Def)

FILE NUMBER(S):
SC 20259/01

COUNSEL:
M B Williams SC (Pl/Appl)
I M Wales SC (Defs/Resps)

SOLICITORS:
Maurice Blackburn Cashman (Pl/Appl)
David I Brown (Defs/Resps)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
PROFESSIONAL NEGLIGENCE LIST

JUSTICE DAVID KIRBY

Wednesday 10 August 2005

20259/01 DR PETER LOCKE v DR COLIN BOVA & ANOR
JUDGMENT [No 2] - On application for Indemnity Costs.

1 KIRBY J: On 24 June 2004, judgment was given in the claim by Dr Peter Locke against Dr Colin Bova and the Liverpool Hospital ([2004] NSWSC 534). The plaintiff was awarded damages amounting to $782,978.48, made up as follows:

General damages	$225,000.00
Interest on general damages	$10,035.00
Past economic loss	$74,806.29
Interest on past economic loss	$16,255.78
Future economic loss	$393,426.00
Past out of pocket expenses	$10,349.35
Future out of pocket expenses	$7,239.51
Past superannuation	$6,031.00
Future superannuation	$39,835.55
Total	$782,978.48

2 The plaintiff was also awarded costs. Counsel for the plaintiff foreshadowed an application for indemnity costs. The defendants foreshadowed an appeal. The application for indemnity costs was deferred, pending the appeal. The appeal was heard on 28 June 2005 and dismissed (Bova v Locke [2005] NSWCA 226). The plaintiff now presses his claim for indemnity costs.

3 The plaintiff relies upon an affidavit of Ms Melanie Stevenson of 28 June 2005 and the defendants upon an affidavit of Ms Barbara Versace of 3 August 2005.

4 The plaintiff puts his argument for indemnity costs on two alternative bases, pointing to certain documents which were served at different stages of the litigation, offering to settle the action by Dr Locke against the defendants. First, an offer of compromise was made on 13 November 2002 in these terms:

"The second plaintiff offers to compromise his action in the following manner:

1. By making a principal offer of $335,680.00 plus costs.

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 Locke v Bova [No 2]

Details

AGLC: Locke v Bova [No 2] [2005] NSWSC 799
Case: [2005] NSWSC 799
Decision Date: 10 August 2005

CaseChat Overview and Summary

In Locke v Bova, the plaintiff sought indemnity costs following the defendant's unsuccessful defence of the action. The dispute centred on the application of the rules governing offers of compromise and the entitlement to indemnity costs. The case was heard and determined in the Supreme Court of Queensland.

The primary legal issue before the court was whether the plaintiff was entitled to indemnity costs following the defendant's failed defence. The court had to consider whether there was a prima facie right to indemnity costs, subject to the court's discretion. A significant aspect of the case was the suggestion that the plaintiff's case changed after the defendant's offer of compromise, and whether a realistic assessment of the plaintiff's case showed a change "on the cards". Additionally, the court needed to consider the impact of the later Calderbank letter on the plaintiff's entitlement to indemnity costs.

The court held that the plaintiff had a prima facie right to indemnity costs, which was subject to the court's discretion. The court found that there was no evidence to suggest that the plaintiff's case changed after the defendant's offer of compromise. Furthermore, the court determined that the later Calderbank letter did not negate the plaintiff's entitlement to indemnity costs. The court ultimately concluded that the plaintiff was entitled to indemnity costs, taking into account the circumstances of the case and the relevant legal principles.

The court ordered that the defendant pay the plaintiff's costs of the application for indemnity costs on an indemnity basis, subject to the usual qualifications and conditions.

Orders