MD v Sydney South West Area Health Service (No 4)

[2009] NSWDC 92

CITATION:	MD v Sydney South West Area Health Service (No 4) [2009] NSWDC 92
HEARING DATE(S):	9-11, 13 February, 6 March, 8 April 2009
EX TEMPORE JUDGMENT DATE:	8 April 2009
JURISDICTION:	Civil
JUDGMENT OF:	Goldring DCJ
DECISION:	1. The second defendant pay the plaintiff's costs on a party and party basis up to and including 20 June 2008, and thereafter pay the costs on an indemnity basis, including the costs of senior counsel. 2. The plaintiff pay the costs of the first defendant up to and including 15 September 2008. After that date there will be no order for costs as concerns the plaintiff and the first defendant.
CATCHWORDS:	COSTS - Senior Counsel - when allowed
LEGISLATION CITED:	Civil Procedure Act 2005
CASES CITED:	Stanley v Phillips (1966) 115 CLR 470
PARTIES:	MD (Plaintiff) Sydney South West Area Health Service (First Defendant) Ian Fulcher (Second Defendant)
FILE NUMBER(S):	215 of 2007
COUNSEL:	A J Lidden SC with E E Welsh (Plaintiff) K Burke (First and Second Defendant)
SOLICITORS:	Bryden's Law (Plaintiff) TressCox Lawyers (First and Second Defendant)

JUDGMENT

1 HIS HONOUR: In this case the plaintiff recovered a verdict against the second defendant, but there was a verdict for the first defendant against the plaintiff.

2 It is not in contention that on 20 June 2008 the plaintiff made an offer of compromise which was not accepted by the second defendant, and I understand that Ms Burke does not disagree with the basic proposition that the plaintiff should have costs on a party-and-party basis up to the date of the offer of compromise and thereafter on an indemnity basis.

3 However, she does suggest that the costs awarded should not include the costs of senior counsel. She puts this on the basis that the case was not one which required the presence of senior counsel, and she relied on something that Barwick CJ said in Stanley v Phillips (1966) 115 CLR 470. That was a case which arose under the Rules of the Supreme Court of Victoria governing the awarding of costs. I am not sure that the Rule, which is set out at p 475 of the judgment, contains any special provisions relating to senior counsel. That rule does not apply, because under s 98 of the Civil Procedure Act the court has an unfettered discretion to award costs. I do have regard to what Barwick CJ said, and that is the idea that costs of senior counsel will generally will not be allowed, unless it is necessary to obtain “an adequate presentation to enable justice to be done”; does the nature of the case require the services of more than one counsel?

4 In this case the plaintiff alleged that the second defendant had done certain things and that the first defendant was vicariously liable. Proof of the matters which the plaintiff was required to establish involved the consideration of significant amounts of medical records, and indeed there was a great deal of subpoenaed material in court that was largely of a technical nature, and counsel for both parties went into that material in great detail. However, where I consider that the services of senior counsel were of great assistance to the plaintiff was in the cross-examination of the second defendant. Although the facts of the case were not unduly complicated, and the legal issues were not unduly complicated, the decision of the case revolved around issues of credit. The second defendant is an established and highly competent medical practitioner, and a lot turned on his evidence. In my view, it was not unreasonable for the plaintiff to obtain the services of senior counsel for the purposes of cross-examining the second defendant. In the circumstances, I propose to allow the costs of senior counsel to the plaintiff in respect of the second defendant.

5 The first defendant seeks an order, not only for costs, but for costs on an indemnity basis. Until 15 September last year, the first defendant was represented by a separate firm of solicitors, and those solicitors prepared a defence. The issue of the liability of the first defendant was an issue of vicarious liability, because there were certainly allegations in the pleadings that the first defendant had itself, or by its servants or agents, been guilty of some negligence, but no evidence of an independent character was called, and the plaintiff appeared to rely on a relationship between the second defendant and the first defendant.

6 I note that no Bullock order is sought. I think, in the circumstances, it was perfectly reasonable for the plaintiff to join the first defendant in the proceedings at the outset, but having done so, it was incumbent on the plaintiff, in view of the authorities which I have cited in my judgment, to adduce some evidence of the relationship. It did not do so, and as a result of that, its case failed, and there was a verdict for the first defendant. The circumstances are not, in my view, circumstances that justify the award of indemnity costs and indeed, it seems to me, that the costs of the first defendant, from the time that it chose to be represented by the same solicitors as represented the second defendants, were not in any way increased or changed. In fact, after the same solicitor came to represent both defendants, it seems to me that the case presented for both defendants was identical, and it could be said that the first defendant did not incur any additional costs after that date.

Orders

7 My orders will be that:

1. The second defendant pay the plaintiff’s costs on a party-and-party basis up to and including 20 June 2008, and thereafter pay the costs on an indemnity basis, including the costs of senior counsel.

2. The plaintiff pay the costs of the first defendant up to and including 15 September 2008. After that date there will be no order for costs as concerns the plaintiff and the first defendant.

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