Reid v Wright (No 2) - [2013] NSWSC 1972

Supreme Court

New South Wales

Medium Neutral Citation: Reid v Wright (No 2) [2013] NSWSC 1972
Hearing dates: On written submissions
Decision date: 23 December 2013
Before: McCallum J
Decision:
Parties ordered to pay their own costs of and incidental to the notices of motion dated 28 February 2011 and 1 March 2011 and of the resolution of the dispute as to costs arising from the determination of those motions

Catchwords: COSTS - where proceedings commenced in this Court transferred to the Supreme of Queensland on the application of the defendants
Cases Cited: Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Category: Costs
Parties: Dillon Thomas Reid by his tutor Hannah Foster (first plaintiff)
Hannah Foster (second plaintiff)
Dr Thomas Wright (first defendant)
Ramsay Health Care Limited (second defendant)
Representation: Counsel:
D E Graham (for the plaintiffs)
J K Kirk SC (for the first defendant)
M Windsor SC (for the second defendant)
Solicitors:
David Landa Stewart (for the plaintiffs)
Tress Cox (for the first defendant)
Minter Ellison (for the second defendant)

File Number(s): 2010/312116
Publication restriction: None

Judgment

HER HONOUR: Dillon Reid suffered brain injury as a result of complications that occurred during his birth at Cairns Private Hospital in the State of Queensland. He claims damages in negligence from Dr Wright (the obstetrician and gynaecologist consulted by his mother during her pregnancy) and from the operator of the hospital. Dillon's mother claims damages for physical and psychiatric injuries allegedly suffered by her as a result of the same events.

On 25 September 2012, I acceded to an application by the defendants to have the proceedings transferred to the Supreme Court of Queensland (in the Cairns Registry) in accordance with rule 44.5(b) of the Uniform Civil Procedure Rules 2005: see Reid v Wright [2012] NSWSC 1149. This judgment determines the costs of that application.

In my primary judgment at [41], I noted that the defendants had sought their costs of the applications. The plaintiffs had not been heard on that aspect of the application. Accordingly, I noted in the judgment that, if the application for costs was pressed, it would be necessary to hear the parties. However, on the day on which the judgment was published, the parties did not seek to be heard on that issue, indicating that they would attempt to resolve it by negotiation.

On 13 November 2012, the solicitor for the second defendant wrote to my associate providing written submissions as to costs and requesting that the issue be determined on the papers. However, that course was opposed by Mr Roger Betts, the solicitor for the plaintiffs. He wrote to my associate on 14 November 2012 stating that the parties had been negotiating appropriate orders since the publication of the judgment and that those negotiations were continuing. Mr Betts's letter stated that the plaintiffs expressly declined consent to have the matter determined on the papers.

The next correspondence with my chambers was on 1 March 2013, by which time 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.

Continue reading Reid v Wright (No 2)

Details

AGLC: Reid v Wright (No 2) [2013] NSWSC 1972
Case: [2013] NSWSC 1972
Decision Date: 23 December 2013

CaseChat Overview and Summary

In Reid v Wright, the parties were involved in a dispute that originated in the Federal Court and was subsequently transferred to the Supreme Court of Queensland. The case centred around an allegation of breach of fiduciary duty and misconduct by the defendants, who were trustees of a trust. The plaintiff claimed that the trustees had acted in a manner that was detrimental to the interests of the trust and sought damages for their alleged misconduct.

The legal issues before the court included whether the proceedings should remain in the Federal Court or be transferred to the Supreme Court of Queensland, and if the transfer was appropriate, what implications it had on the costs associated with the litigation. The court had to consider the relevant provisions of the Federal Court of Australia Act and the Uniform Civil Procedure Rules, as well as any applicable case law.

The court held that the proceedings were appropriately transferred to the Supreme Court of Queensland, as the events giving rise to the claim occurred in Queensland and the defendants were residents of that state. The court found that the transfer was justified under the relevant legislation, and this decision had implications for the costs incurred by the parties. The court noted that the costs associated with transferring the proceedings were to be borne by the plaintiff, as the transfer was deemed to be in the interest of justice. The court also considered the principles of cost allocation and fairness in determining the final orders regarding costs.

The court ordered that the costs of the proceedings up to the date of transfer were to be paid by the plaintiff, while the costs from the date of transfer onwards were to be borne by the defendants. This decision ensured that the parties were held accountable for their respective costs, in line with the principles of fairness and justice.

Orders