Ozkan v Leitch (Ruling No 1)

[2012] VSC 16

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. SCI 2009 10527

BETWEEN

HURIYE OZKAN	Plaintiff
and
MR ROBERT LEITCH	First Defendant
and
ST VINCENT’S HOSPITAL (MELBOURNE) LTD	Second Defendant
and
MR RUSSELL CORLETT	Third Defendant

IN THE SUPREME COURT OF VICTORIA
AT MELBOURNE
COMMON LAW DIVISION

No. SCI 2010 00216

BETWEEN

HURIYE OZKAN	Plaintiff
and
ST VINCENT’S HOSPITAL (MELBOURNE) LTD	First Defendant
and
DR PETER FARNBACH	Second Defendant
and
DR DIANE NEILL	Third Defendant

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JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	31 January 2012
DATE OF RULING:	31 January 2012
CASE MAY BE CITED AS:	Ozkan v Leitch & Ors (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2012] VSC 16

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ADMINISTRATIVE LAW – Judicial review – Medical panel findings – Orders by consent – Costs – Whether plaintiff disentitled to costs by conduct of proceeding – Whether liable for costs of previous adjournment.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff (in each proceeding)	Mr A G Uren QC and Mr A Pillay	Holding Redlich
For St Vincent’s Hospital (Melbourne) Limited (the first defendant in action 2010 00261 and the second defendant in action 2009 10527)	Dr K Hanscombe SC	Minter Ellison
Counsel for Mr R Leitch and Mr R Corlett (the first and third defendants in action 2009 10527) and for Dr Peter Farnbach and Dr Diane Neill (the first and second defendants in action 2010 00261)	Ms M Britbart	Monahan & Rowell

HIS HONOUR:

1. On the issue of costs, while there have been some delays and amendments by the plaintiff in the manner in which she is putting her case, I do not consider that the conduct of the plaintiff in either proceeding is such as to disentitle it to the ordinary order for costs.  She has come to this Court seeking relief in relation to the findings by the two Medical Panels, and by consent it is agreed that that relief be granted to her.  Therefore, in my view, subject to one exception, the plaintiff should have her costs in relation to both proceedings. 

1. The one exception relates to the costs that were reserved by Associate Justice Mahony on 25 February 2010.  It seems clear, from the outline of matters stated in the affidavit of Mr Oxley of 30 January, that the incurring of those costs was substantially due to delays on behalf of the plaintiff.  Therefore the plaintiff should not have those costs and I shall make orders accordingly.

1. In relation to the costs that were reserved by Macaulay J on 2 August 2011, I agree also with Mr Uren's submission that there was no conduct on behalf of the plaintiff disentitling the plaintiff to her costs in relation to those reserve costs.  I also add that there was no conduct on behalf of the hospital defendant in either proceeding in relation to those costs. 

1. Dr Hanscombe of senior counsel, who appears for the hospital in each proceeding, has submitted that if the plaintiff is to have the costs, which were reserved by Macaulay J, those costs should be paid by the panel.  It is only on rare occasions that the panel is ordered to pay such costs.  I do not consider the conduct of the panel to be such in this case as to justify an order for costs against it.  Rather it properly drew to the attention of the parties and the Court that the possible consequences of a construction of the judgment of Cavanough J in McAlister v Leitch & Ors.[1]

   [1][2011] VSC 51.

1. I do not consider that the panel, in having responsibly drawn that authority to the attention of the court and the parties, has conducted itself in a way which would entitle the plaintiff to costs against the panel.  Rather, those are the types of costs which, fortunately not too often, do arise in cases where issues are raised, albeit at a late stage, and the ordinary rule is that the contradicting party which fails in the case bears those costs. 

1. Therefore, I shall order, in the two proceedings, that the defendant, the St Vincent's Hospital Melbourne Limited, which is the first defendant in Proceeding No. 261 and the second defendant in Proceeding No. 527, pay the costs of the plaintiff, including reserved costs, with the exception of the costs which were reserved by Associate Justice Mahony on 25 February 2010 and in relation to those costs, each party shall bear their own costs.