South Eastern Sydney Area Health Service & v King (No 2)

In *South Eastern Sydney Area Health Service & Anor v King (No 2)*, the Court of Appeal of New South Wales considered an appeal by the defendants against a judgment in a medical negligence action, and a cross-appeal by the plaintiff. The central dispute revolved around the plaintiff's offers of compromise made after the defendants had filed their notice of appeal and before the hearing of the appeal.

The legal issues before the Court of Appeal included the application of the *Civil Procedure Act 2005* (NSW), Schedule 6, section 5, to an offer of compromise made after judgment and before the hearing of an appeal. The Court also had to determine the implications of two separate offers of compromise made by the plaintiff, one made before the filing of all written submissions and another made after all written submissions had been filed. The Court was required to consider whether these offers, made at different stages of the appellate process, warranted different cost consequences.

The Court reasoned that an offer of compromise made after judgment and before the hearing of an appeal raises different considerations than those applicable to pre-trial offers. It noted the similarity between the provisions governing offers of compromise in the Supreme Court Rules (SCR) and the Uniform Civil Procedure Rules (UCPR). The Court found that the plaintiff's first offer of compromise, made after the defendants' notice of appeal and before the filing of their written submissions, was made in circumstances that justified an order for indemnity costs.

Consequently, the Court ordered that the defendants pay the plaintiff's costs of the appeal and cross-appeal on a party and party basis up to and including 14 June 2005, and thereafter on an indemnity basis.