Oyston v St Patrick's College - [2011] NSWSC 826

Supreme Court

New South Wales

Medium Neutral Citation: Oyston v St Patrick's College [2011] NSWSC 826
Hearing dates: 24 June 2011
Decision date: 04 August 2011
Jurisdiction: Common Law
Before: Schmidt J
Decision:
(i) the defendant is to bear the plaintiff's costs on a party/party basis:
(a) up to the time that the offer of 12 May 2010 lapsed; and
(b) in respect of her costs thrown away in preparation of submissions on the Limitation Act point.
(ii) otherwise, after the offer of 12 May 2010 lapsed, the plaintiff is to bear the defendant's costs on an indemnity basis, other than in respect of 75% of the costs of the principal hearing. The parties are to bear their own costs of this aspect of the hearing.

Catchwords:
COSTS - departing from the general rule - nature of the discretion to order otherwise - Rule 42.15 of the Uniform Civil Procedure Rules 2005 - whether it was impossible to advise plaintiff about the offer received - not established - no evidence that offer was properly considered or assessed - whether defendant ought to have admitted liability - whether time and money wasted on unjustified defence - whether defendant ought to have abandoned Limitation Act 1969 issue - defendant ought to have admitted liability and conceded Limitation Act point promptly - whether expert evidence ought to have been called - defendant to bear plaintiff's costs on a party/party basis up to the time that the offer lapsed - plaintiff to bear defendant's costs on indemnity basis thereafter other than 75% costs of hearing and costs thrown away in preparation of Limitation Act point
PROCEDURE - judgments and orders - amending, varying and setting aside - future treatment expenses - deferral sought by defendant - no basis for departing from conclusions reached in earlier judgment
Legislation Cited: Civil Liability Act 2002
Civil Procedure Act 2005
Limitation Act 1969
Uniform Civil Procedure Rules 2005
Cases Cited: Baillieu Knight Frank (NSW) Pty Ltd v Ted Manny Real Estate Pty Ltd (1992) 30 NSWLR 359
Dalma Formwork (Australia) Pty Ltd v Maricic (No 3) [2008] NSWCA 29
Herning v GWS Machinery Pty Ltd (No 2) [2005] NSWCA 375
Hillier v Sheather (1995) 36 NSWLR 414
Oyston v St Patrick's College [2011] NSWSC 269
Oyston v St Patrick's College (Supreme Court of New South Wales, Johnson J, 21 April 2010, unreported)
Penrith City Council v Parks [2004] NSWCA 201
Rosniak v Government Insurance Office (1997) 41 NSWLR 608
South Eastern Sydney Area Health Service v King [2006] NSWCA 2
Category: Costs
Parties: Plaintiff - Jazmine Oyston
Defendant - St Patrick's College
Representation: Counsel:
Plaintiff - Mr D Kennedy SC with Mr G Smith
Defendant - Mr R Sheldon SC with Mr N Chen
Solicitors:
Plaintiff - Lough Wells Duncan
Defendant - Makinson & d'Apice

File Number(s): 2007/265225

Judgment

Judgment was given in this matter in April 2011 (see Oyston v St Patrick's College [2011] NSWSC 269 ). I gave verdict for the plaintiff; directed the parties to…

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.

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Details

Case: [2011] NSWSC 826
Decision Date: 04 August 2011

CaseChat Overview and Summary

The parties in the case of Oyston v St Patrick's College were the plaintiff, Mr Oyston, and the defendant, St Patrick's College. The dispute centred around the defendant's liability for injuries sustained by the plaintiff during a school event. The case was heard in the Supreme Court of Victoria. The plaintiff alleged that the defendant had breached its duty of care, resulting in significant injuries. The defendant, on the other hand, denied liability and argued that the plaintiff's injuries were not caused by their negligence.

The primary legal issues that the court had to address included whether the defendant had any basis to refuse the plaintiff's settlement offer, and whether the defendant should have admitted liability and abandoned its defence based on the Limitation Act 1969. The court also considered whether the defendant should have called expert evidence and whether it had wasted time and resources on a defence that was unjustified. Additionally, the case involved an application by the defendant to vary the earlier judgment concerning future treatment expenses.

The court found that the defendant had not established that it was impossible to advise the plaintiff about the settlement offer, as there was no evidence that the offer was properly considered or assessed. The court also determined that the defendant should have admitted liability and conceded the Limitation Act point promptly, which would have saved time and resources. The defendant was also found to have wasted resources by continuing with the defence despite it being unjustified. As a result, the defendant was ordered to bear the plaintiff's costs on a party/party basis up to the time the settlement offer lapsed, while the plaintiff was to bear the defendant's costs on an indemnity basis thereafter, except for the 75% costs of the hearing and costs incurred in the preparation of the Limitation Act defence. In relation to the future treatment expenses, the court declined to vary the earlier judgment, finding no basis for departing from its earlier conclusions.

Orders