Sydney South West Area Health Service v Stamoulis

[2010] HCATrans 209

[2010] HCATrans 209

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S276 of 2009

B e t w e e n -

SYDNEY SOUTH WEST AREA HEALTH SERVICE

Applicant

and

KRISTY MICHELLE STAMOULIS

Respondent

Summons

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 10 AUGUST 2010, AT 2.32 PM

Copyright in the High Court of Australia

MR P. MENZIES, QC:   If your Honour pleases, I appear for the applicant on the motion.  (instructed by Crown Solicitor (NSW))

MR B.M. TOOMEY, QC:   May it please your Honour, I appear with MR D.R.J. TOOMEY for the respondent.  (instructed by McLaughlin & Riordan Solicitors)

HIS HONOUR:   Now, what brings two senior counsel here to debate this question?

MR MENZIES:   Your Honour, it is our task to persuade your Honour that the ordinary rule with respect to costs ought not apply and that we seek an order on the motion that each party bear its own costs.  The basis for it is this, your Honour.  The application for special leave was always an application to protect our position ‑ ‑ ‑

HIS HONOUR:   Your position being?

MR MENZIES:   Our position being that we had, in the Court of Appeal, submitted that the decision in Gett v Tabet was wrong.

HIS HONOUR:   Well, you had succeeded in the Court of Appeal in getting a new trial, did you not?

MR MENZIES:   We did, your Honour.

HIS HONOUR:   On what issue – the negligence issue?

MR MENZIES:   On negligence, your Honour. 

HIS HONOUR:   What has since happened to that?

MR MENZIES:   What has since happened is that the trial has taken place.  We lost.  The respondent here, the plaintiff, has succeeded.  In the meantime, upon this Court affirming Gett v Tabet in Tabet v Gett, we then abandoned the application here.

HIS HONOUR:   Wait a minute.  She succeeded at the retrial.

MR MENZIES:   Yes, your Honour.

HIS HONOUR:   So she has recovered a verdict?

MR MENZIES:   Yes, she has, your Honour.

HIS HONOUR:   Are you appealing against that?

MR MENZIES:   No, your Honour.  The only issue that brings us here is the costs of the special leave application which we abandoned and which, under ordinary circumstances, we would bear the costs.  Our submission is that because of the position that the respondent took in this application we were unnecessarily obliged to make an application for special leave when it could have abided, as indeed was what happened, the ultimate decision of this Court in Tabet v Gett.

HIS HONOUR:   Now, in the Court of Appeal, as I read it, Justice Ipp dealt with what I might call the second question in favour of Mr Toomey’s client on the basis that there was a material contributing cause.  Is that right?

MR MENZIES:   That is right, your Honour.

HIS HONOUR:   Which is enough in accordance with orthodox principle.

MR MENZIES:   That is so, your Honour.

HIS HONOUR:   Would that not be right?

MR MENZIES:   Yes.

HIS HONOUR:   So what was the position you wanted to protect?

MR MENZIES:   The position we wanted to protect was that in the event of Gett v Tabet being overruled the measure of damages was a measure of the loss of a chance. 

HIS HONOUR:   And nothing more?

MR MENZIES:   No, your Honour, nothing more.

HIS HONOUR:   I will see what Mr Toomey says.

MR TOOMEY:   Your Honour, I think, with respect, your Honour has put your finger on it.  There were two matters before the Court of Appeal:  one, whether the matter ought to have been determined on the basis of loss of a chance – in other words, contrary to what was said in Gett v Tabet and then Tabet v Gett or, alternatively, and this was the respondent here, the plaintiff’s argument, that there was a material contribution from the failure to detect the cancer because a separate damage occurred in the nature of the metastatic tumours, which was conceded by the defendant to have occurred after metastasis was conceded to have occurred after the failure to detect the cancer. 

HIS HONOUR:   It becomes a Bonnington‑type case, does it not?

MR TOOMEY:   Yes.  Your Honour, in the absence of the defendant having put on an application for special leave, not only in respect of the Gett v Tabet point, but in respect of the finding of direct causation which the Court of Appeal made, it was fruitless and that is why we refuse to agree.  Our client has been kept out of ‑ ‑ ‑

HIS HONOUR:   There is some fairly feisty correspondence.

MR TOOMEY:   It has had a certain bristle to it, your Honour, yes.  But that was our point, your Honour.  Had Mr Menzies’ client won, had your Honours overturned Gett v Tabet, we would have been left with our verdict because that was not the basis – I am sorry, it was only one basis of the Court of Appeal’s finding for us.  May it please, your Honour.

HIS HONOUR:   Yes, Mr Menzies.

MR MENZIES:   I do not wish to add anything further.

HIS HONOUR:   The situation that underlies this application has been made clearly apparent by the careful affidavit material that has been put on in support of the summons which was filed on 11 May.  Having heard the submissions developed orally by counsel this afternoon, it seems to me that the respondent is correct.  This is not a case for displacing the ordinary consequence that would flow from the discontinuance of the special leave application in this matter.  Accordingly, on the summons filed on 11 May, I think the order has to be summons dismissed with costs.  Would that be right, gentlemen?

MR MENZIES:   If your Honour pleases.

MR TOOMEY:   Yes, your Honour.

HIS HONOUR:   Yes, thank you, gentlemen.  I will now adjourn.

AT 2.38 PM THE MATTER WAS CONCLUDED