Reid v Wright (No 2) - [2013] NSWSC 1965

Supreme Court

New South Wales

Medium Neutral Citation: Reid v Wright (No 2) [2013] NSWSC 1965
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 1965
Case: [2013] NSWSC 1965
Decision Date: 23 December 2013

CaseChat Overview and Summary

In the case of Reid v Wright, the dispute centred on the costs incurred in a proceeding initially filed in the Federal Court, which was subsequently transferred to the Supreme Court of Queensland at the request of the defendants. The plaintiff, Reid, sought a ruling on the costs from the initial proceedings. The defendants, Wright, argued that the costs should be determined according to the rules applicable in the Supreme Court of Queensland. The court was tasked with deciding whether the costs should be assessed under the Federal Court rules or the Queensland Supreme Court rules.

The legal issue before the court was whether the costs incurred in the initial Federal Court proceedings should be assessed under the Federal Court rules or the Queensland Supreme Court rules after the proceedings were transferred. The court needed to determine the appropriate legal framework for assessing costs in light of the transfer of the case from one jurisdiction to another. This involved examining the relevant legislative provisions and case law to determine the applicable costs regime.

The court found that the costs should be assessed under the rules applicable to the jurisdiction in which the proceedings were ultimately determined. Given that the case was transferred to and determined in the Supreme Court of Queensland, the court held that the Queensland Supreme Court rules were the appropriate framework for assessing the costs. The court emphasised that the costs rules in the new jurisdiction applied from the point of transfer, regardless of the costs incurred in the earlier proceedings. Consequently, the court ruled that the costs incurred in the Federal Court proceedings should be assessed according to the rules of the Supreme Court of Queensland.

The final orders of the court provided that the costs incurred in the Federal Court proceedings should be assessed in accordance with the rules of the Supreme Court of Queensland. This decision clarified the application of costs rules following a transfer of proceedings between different jurisdictions, ensuring that the costs are assessed under the rules of the jurisdiction where the case is finally determined.

Orders