Seivwright v Thyer
[2008] WADC 154
•13 OCTOBER 2008
SEIVWRIGHT -v- THYER & ANOR [2008] WADC 154
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WADC 154 | |
| Case No: | CIV:2318/2006 | NOT APPLICABLE | |
| Coram: | DEPUTY REGISTRAR HARMAN | 13/10/08 | |
| PERTH | |||
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Review successful | ||
| PDF Version |
| Parties: | LISA SEIVWRIGHT BRUCE HEDLEY THYER MINISTER FOR HEALTH |
Catchwords: | Practice Western Australia Taxation of costs Allowance of claim for disbursement Turns on own facts |
Legislation: | Nil |
Case References: | Auspine Ltd v Australian Newsprint Mills Ltd [1999] FCA 673 Ian Walter Brookfield & Septic Products Australia Pty Ltd (in liquidation) v Davey Products Pty Ltd [1997] FCA 1462 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
BRUCE HEDLEY THYER
First Defendant
MINISTER FOR HEALTH
Second Defendant
Catchwords:
Practice - Western Australia - Taxation of costs - Allowance of claim for disbursement - Turns on own facts
Legislation:
Nil
(Page 2)
Result:
Review successful
Representation:
Counsel:
Plaintiff : Mr J R Potter
First Defendant : Ms S Taylor
Second Defendant : Ms S Taylor
Solicitors:
Plaintiff : Friedman Lurie Singh & D'Angelo
First Defendant : Minter Ellison
Second Defendant : Minter Ellison
Case(s) referred to in judgment(s):
Auspine Ltd v Australian Newsprint Mills Ltd [1999] FCA 673
Ian Walter Brookfield & Septic Products Australia Pty Ltd (in liquidation) v Davey Products Pty Ltd [1997] FCA 1462
(Page 3)
1 DEPUTY REGISTRAR HARMAN: It is common ground that the plaintiff is entitled to her costs of the action. The defendants have now bought in an objection to the allowance at taxation of a claim for the report of Dr Brett. It is for the defendants to establish an error in principle in the allowance of the claim.
2 The grounds of objection are as follows:
"1. The report of Dr Brett was never discovered, nor produced for the inspection of the Defendants, nor relied on by the Plaintiff during the course of the litigation.
2. On the submissions of the Plaintiff's solicitor at the taxation, the report was commissioned to explore the possible link between the Plaintiff's complaints of abdominal pain and her failed sterilisation operation (the subject of the Plaintiff's action). As argued by the Defendants' solicitors at the taxation, none of the various medical reports or opinions obtained in the course of this litigation prior to the commissioning of the report of Dr Brett suggested there was any basis for surmising there was link between the failed sterilisation operation and the Plaintiff's abdominal pain. On the contrary, the Plaintiff discovered a referral letter of her general practitioner dated 5 July 2005 indicating it was his view her abdominal pain may be associated with adhesions from an (unrelated) appendicectomy; and a report of the Plaintiff's gynaecologist Dr Rumpus dated October 2005 in which Dr Rumpus, who had specifically been asked to investigate the claimant's abdominal pain, expressed the view her pain was probably secondary to adhesions about her ovary. The claimant did not see Dr Brett until 2006, after she would have been in possession of these medical opinions/information.
3. The Defendants contend the report of Dr Brett was a fishing expedition on the part of the Plaintiff. The Plaintiff was trying to obtain a third medical opinion on this issue in the hope this might support her, as yet, unfounded assertion.
4. It is assumed by the Defendant that Dr Brett's opinion also failed to support an argument of a causal link.
- The Defendants assume had Dr Brett supported a link between the plaintiff's abdominal pain and her failed sterilisation, the report would have been relied on by the Plaintiff and disclosed to the Defendants prior to settlement.
- 5. For the reasons outlined above, namely that the Plaintiff already had medical opinion from her general practitioner who was well aware of her medical history, plus her treating gynaecologist, it was not reasonable or necessary for her to obtain a third opinion and accordingly it is not appropriate that the Defendants pay for this. 'It is a general rule that, as between party and party, luxuries in litigation must be paid for by those who indulge in them, the necessaries only are to be paid by the losing side.' (per Barton J, Donohoe v Britz (2) (1904) 1CLR 622 at 666).
6. Further, in Auspine Ltd v Australian Newsprint Mills Ltd (1999) 93 FCA 673 O'Loughlin J stated “on the taxation of a bill of costs on a party and party basis, a taxing officer will allow all necessary and proper costs that have been incurred, but not those costs that arise as a result of an over cautious or an excessively investigative approach.”
7. We reiterate our contention that obtaining a third medical opinion was excessively investigative and not a necessary part of this litigation.
8. Further, in Brookfield and Septic Products Australia Pty Ltd (in liquidation) v Davey Products Pty Ltd – a 1997 decision of Branson J of the Federal Court of Australia (NSW District Registry) BC9707153 it was held that 'claim in respect of experts reports [made in that case] includes the cost of reports prepared by individuals who did not give evidence and whose reports were not received in evidence. I consider it appropriate to reduce the amount claimed under this head by excluding such costs.' We submit this case supports the proposition a party cannot recover the costs of expert reports obtained where those reports have not been relied on."
(Page 5)
3 The plaintiff has responded to that objection in a letter of 7 August 2008 as follows:
"1. A matter in issue on the pleadings was whether the Plaintiff's residual abdominal pain, which was still extant at the time of issue of the Writ, was due to the defendants' negligence.
2. Dr Brett reviewed the Plaintiff on 6 April 2006. The Plaintiff was referred to Dr Brett by her general medical practitioner in March 2006. In May 2006 the Plaintiff's lawyers asked Dr Brett to prepare a report commenting inter alia on liability and on the Plaintiff's presenting complaints which included right sided abdominal pain and pain on intercourse. Dr Brett raised an invoice in respect of the report and consultation fee and did not charge Medicare for the consultation, presumable (sic) because he felt the nature of what he was being asked to comment on was more of a medico-legal rather than a medical nature.
3. Dr Brett's report is dated 23 April 2007 and was received on 6 June 2007. The report comments on both of the issues referred to in the previous paragraph.
4. In relation to the matters referred to in paragraph 2 of the defendants' submissions, the referral letter dated 5 July 2005 and the "report" of Dr Rumpus dated October 2005 were received on 26 July 2007 enclosed with a letter from the Plaintiff's general practitioner, Dr Walkey, dated 23 July 2007. Further copies of these documents were received direct from Dr Rumpus on 20 August 2007 with his letter dated 18 July 2007. The "report" of Dr Rumpus is actually a letter from Dr Rumpus to Dr Walkey, the Plaintiff's general medical practitioner. The letter is dated 25 October 2005. This letter comments upon a single clinical review between Dr Rumpus and the Plaintiff which took place in October 2005.
5. In his letter Dr Rumpus considered the discomfort the Plaintiff was experiencing may be secondary to adhesions about her ovary. The Plaintiff chose not to seek an opinion from Dr Rumpus as to whether these adhesions
- may be due to the incorrect placement of a Filshie clip, and Dr Rumpus expressed no view on this issue in his letter as he had not been asked to do so by the referring general medical practitioner.
- 6. The fact one medical specialist may express an opinion about the cause of a Plaintiff's pain (which in any event did not occur in this case) should not be considered to preclude a party from seeking a further opinion in respect of the same issue. This occurs in virtually every personal injury claim where legal proceedings are commenced. Moreover, the opinion in this matter dealt both with the issues of liability as well as causation of damage.
7. It should be considered entirely reasonable in this case for an opinion to be sought as to the cause of the Plaintiff's ongoing pain (in 2006) where a previous opinion had been expressed on the issue on the basis of a clinical review.
8. Once it is determined that seeking an opinion from Dr Brett in respect of the issues referred to above was reasonable, the disclosure or non-disclosure of the report to the defendants' solicitors is irrelevant to the issue of whether or not the disbursement should be allowed."
4 In her pleading the plaintiff had asserted that she experienced abdominal pain and that it was causally related to the defendants' breach of duty. It was evident from the plaintiff's submissions that the opinion of Dr Brett had been sought in relation to those allegations. Settlement of the action had removed the prospect of any determination being made in relation to either of those allegations. That left the plaintiff's pleading as the only datum for determining the scope for recovery under the order for costs.
5 The issue raised by the contentions in pars 2 and 3 of the grounds of objection that the allegations were unsubstantiated, is whether the defendants have discharged the onus. Having made that observation and determining that they have failed to do so, I would add that ultimately the only comfort that in similar circumstances any adverse party would have is that it would have been inappropriate for the beneficial party to have made an unfounded allegation.
(Page 7)
6 The terms by which the defendants present some grounds of objection suggest that in seeking a third opinion the plaintiff exceeded either some unspecified rule or the needs of the case. There is no such rule although I accept that for particular purposes there is a widely held view that there is a limit on expert evidence. Some support for that view would be provided by one feature of the scope for recovery under the usual order for costs: that of necessity. Be that as it may, such a view has limited utility and its portrayal as a rule is likely only to lead to error as allowance must depend upon an assessment of the considerations that bore upon the commissioning of the opinion.
7 The plaintiff's submissions reveal that the defendants' contention that the report of Dr Brett was sought after adverse reports were received from others is unfounded; however even if the defendants' contention was accurate, that would not necessarily have justified disallowance of the claim.
8 In the event that a party seeks to rely upon expert opinion at trial there are provisions in the rules with which it is required to comply. Otherwise there is no requirement that opinion evidence be disclosed. The fact that a report has not been discovered may be significant for particular purposes but has no bearing upon whether the cost associated with its generation is part of the costs of the action of the party to whom it was provided.
9 As to the defendant's reference to Auspine Ltd v Australian Newsprint Mills Ltd [1999] FCA 673, the particular quotation is of no particular significance. That is not to say that it does not reflect principle upon which every taxation ought to proceed. The context in which the reference is made is such that I am at a loss to understand the defendant's point.
10 As to the defendant's reference to Ian Walter Brookfield & Septic Products Australia Pty Ltd (in liquidation) v Davey Products Pty Ltd [1997] FCA 1462 a decision of Branson J of the Federal Court of Australia of 19 December 1997 in action SG 112 of 1993, the defendant cites what amounts to the exercise of discretion in a particular case. I have no difficulty with the proposition that the taxing officer has discretion in taxing claims. Again I do not understand the proposition that the defendant advances.
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