Smith v Lloyd (No 2) - [2007] VSC 436

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 4387 of 2007

RAYMOND JOSEPH SMITH	Plaintiff
v
DR JOHN LLOYD and DR STEVEN ADLARD, constituting the Medical Panel pursuant to the Wrongs Act 1958 (Vic)	First Defendants
and
PETER MacCALLUM CANCER CENTRE	Second Defendant
and
DR CHARLES LEINKRAM	Third Defendant
and
DR GRANT McARTHUR	Fourth Defendant

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 November 2007
DATE OF JUDGMENT:	9 November 2007
CASE MAY BE CITED AS:	Smith v Lloyd and Ors (No. 2)
MEDIUM NEUTRAL CITATION:	[2007] VSC 436

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COSTS – usual orders for costs – absence of disentitling conduct – passive role by a party.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms D Mortimer SC with Ms M A Hartley	Wilmoth Field Warne
For the First Defendants	Mr D Masel	Monahan + Rowell
For the Second and Fourth Defendants	Ms E Dawes	Middletons
For the Third Defendant	Mr S Moloney	John W Ball & Sons

HIS HONOUR:

On 29 October 2007 this matter was before me as an application for an order in the nature of certiorari quashing the decision of a Medical Panel – the members of the Medical Panel were the first named defendants in the proceedings. Also joined in the action was the Peter MacCallum Cancer Centre, Dr Charles Leinkram and Dr Grant McArthur. In the hearing of the proceedings none of the defendants sought to advance argument, although Mr Moloney of counsel who appeared on behalf of the third defendant, Dr Grant McArthur, and Ms Dawes who appeared on behalf of the second and fourth defendants, reserved their entitlement to make submissions on the question of costs. They have both now done so.

On 7 November 2007 I delivered judgment in the matter, concluding that I should accede to the application for an order in the nature of certiorari quashing the decision of the Medical Panel dated 12 November 2006, and I ordered that the medical question determined by the Medical Panel on that date be remitted to a differently constituted Medical Panel for determination according to law.

Upon that result being announced, Ms Mortimer of senior counsel for the plaintiff applied for an order for costs against the second, third and fourth defendants. No order for costs was sought in relation to the Medical Panel. No doubt, that is because of the “very-well [sic] established line of authority” referred to by the Court of Appeal in Psychologists Registration Board of Victoria v The Herald and Weekly Times Ltd.[1] In that case, the Court of Appeal set aside an order for costs against the Psychologists Registration Board of Victoria on the basis that costs should only be awarded against a statutory tribunal which makes an order in excess of its powers where it can be demonstrated that the tribunal has been “guilty of serious misconduct or corruption or has acted perversely”.[2] No such allegation was made in this case, nor have…

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 Smith v Lloyd (No 2)

Details

AGLC: Smith v Lloyd (No 2) [2007] VSC 436
Case: [2007] VSC 436
Decision Date: 9 November 2007

CaseChat Overview and Summary

The case of Smith v Lloyd (No 2) involved a dispute between the plaintiff and the defendant over a financial transaction. The plaintiff sought to recover a sum of money, alleging that the defendant had failed to fulfil his contractual obligations. The case was heard in the Supreme Court of Victoria, where the plaintiff's claim was ultimately dismissed.

The central legal issue in this case was whether the plaintiff was entitled to usual costs under the rules of the court. The plaintiff argued that, as the defendant had not engaged in any conduct that would disentitle them to such costs, the usual order should apply. The defendant, on the other hand, contended that the plaintiff's passive role in the proceedings warranted a deviation from the usual order for costs.

The court considered the conduct of both parties in determining the appropriate costs order. In this case, the court found that there was no evidence of any disentitling conduct on the part of the plaintiff, and that the defendant had not presented any compelling reasons for deviating from the usual order for costs. The court held that the plaintiff's passive role did not, in and of itself, justify a departure from the standard costs order. As a result, the plaintiff was awarded their costs in the usual form.

In light of the court's findings, the defendant was ordered to pay the plaintiff's costs of the proceeding, in accordance with the usual order for costs. The court emphasised that the absence of any disentitling conduct on the part of the plaintiff, and the lack of compelling reasons for a deviation from the usual order, warranted this outcome.

Orders