Paul Harris v Dr Michael Bellemore (No 3) - [2010] NSWSC 907

CITATION: Paul Harris v Dr Michael Bellemore (No 3) [2010] NSWSC 907

HEARING DATE(S): 5 August 2010

JUDGMENT DATE :
13 August 2010

JUDGMENT OF: McCallum J at 1

DECISION: 1. Subject to order 2, I order the defendant to pay the plaintiff’s costs of the proceedings up to and including 6 March 2009.
2. I order the defendant to pay the plaintiff’s costs thrown away by reason of the defendant’s denial until 7 April 2009 of the matters admitted by letter that day, including any costs incurred after 6 March 2009, assessed on an indemnity basis.
3. Subject to order 2, I order each party to bear his own costs of the proceedings from 7 March 2009 to 11am on 8 April 2009.
4. I order the plaintiff to pay the defendant’s costs of the proceedings, assessed on an indemnity basis, from 11 am on 8 April 2009 apart from the costs of the present application.
5. I order each party to bear his own costs of the present application.
6. I grant liberty to the plaintiff to re-list the proceedings before me within 2 months of today in the event that he wishes to make any application against any of his former solicitors under section 99 of the Civil Procedure Act 2005.

CATCHWORDS: COSTS - application for indemnity costs following late admission of liability - offers of compromise.

LEGISLATION CITED: Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005

CATEGORY: Consequential orders

CASES CITED: Harris v Bellemore [2010] NSWSC 176
Lahoud v Lahoud [2006] NSWSC 126
Oshlack v Richmond River Council (1998) 193 CLR 72
Jones v Bradley (2) [2003] NSWCA 258
SMEC Testing Services Pty Ltd v The Campbelltown City Council [2000] NSWCA 323
Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd (2) [2008] NSWCA 85
Hillier v Sheather (1995) 36 NSWLR 414

PARTIES: Paul Harris (Plaintiff)
Dr Michael Bellemore (Defendant)

FILE NUMBER(S): SC 20699/01

COUNSEL: Mr T D Kelly (Solicitor) (Plaintiff)
Mr E C Muston (Defendant)

- 13 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

McCallum J

13 August 2010

20699/01 PAUL HARRIS v DR MICHAEL BELLEMORE (No 3)

JUDGMENT

1 MCALLUM J: Mr Harris sued Dr Bellemore for medical negligence arising out of limb-lengthening treatment undertaken in 1996 and 1997 using a technique named after a Russian doctor, Professor Ilizarov. On 29 March 2010, I gave judgment for Mr Harris in an amount to be assessed in accordance with my reasons published that day: Harris v Bellemore [2010] NSWSC 176. Those reasons identified two matters for further argument. My judgment on those further matters was given on 22 June 2010. The final amount in which judgment was entered for Mr Harris was $652,892.95 on 24 June 2010.

2 This judgment deals with the parties’ applications as to costs.

Orders sought by Mr Harris

3 Mr Harris seeks an order for his costs of the proceedings. Dr Bellemore accepts that Mr Harris has had some success in the…

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: [2010] NSWSC 907
Decision Date: 13 August 2010

CaseChat Overview and Summary

The matter before the court involved Paul Harris suing Dr Michael Bellemore, a medical practitioner, for professional negligence. Harris alleged that Bellemore had provided substandard care, leading to significant personal injury. The case was heard in the Supreme Court of New South Wales. The dispute centred on the issue of indemnity costs that Harris sought from Bellemore following the latter's admission of liability. This admission was made after the trial had already begun, leading Harris to apply for indemnity costs pursuant to section 60 of the Civil Procedure Act 2005.

The court was required to determine whether the late admission of liability justified an order for indemnity costs. Additionally, the court had to consider the effect of offers of compromise on the indemnity costs claim. The primary legal issue was whether the circumstances warranted an order for indemnity costs, and if so, the appropriate quantum. The court also had to examine the relevance of the offers of compromise made by Bellemore during the litigation process.

The court held that the late admission of liability was a significant factor in favour of awarding indemnity costs. The court noted that the admission occurred well into the trial, which had a substantial impact on the proceedings and the costs incurred. The judge considered the offers of compromise made by Bellemore, which, although not formally made under the Uniform Civil Procedure Rules, were relevant in assessing the overall conduct of the case. Ultimately, the court granted an order for indemnity costs, reflecting the significant delay and the impact on the litigation process. The precise amount of costs was to be determined in further proceedings.

Orders