Taylor v The Medical Board of South Australia (No 2)

[2010] SASC 331

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Application)

TAYLOR v THE MEDICAL BOARD OF SOUTH AUSTRALIA (NO 2)

[2010] SASC 331

Judgment of The Honourable Justice Anderson

2 December 2010

PROCEDURE - COSTS - GENERAL RULE - COSTS FOLLOW THE EVENT - COSTS OF ISSUES

LUMP SUM BASIS OF AWARDING COSTS WHERE UNSUCCESSFUL PARTY SUCCEEDED ON SOME ISSUES - r 264(5)(c)

The appellant appealed against a decision of the Medical Board of South Australia - appellant was an intern at the Queen Elizabeth Hospital - registration lapsed before internship completed - Board decided to refuse re-registration as medical practitioner - apellant appealed to this Court - appeal dismissed - Board applied for costs - costs awarded to the respondent on a party and party basis - the appellant succeeded on ground 1 of the appeal and also on another point - whether costs follow the event - whether a reduction ought to be made for the issues decided in the appellant's favour.

Held: A reduction of one-third is appropriate in the exercise of overall discretion - lump sum awarded - award made after reduction of counsel fees claimed.

Supreme Court Civil Rules 2006 r 264(5)(c), referred to.
Taylor v The Medical Board of South Australia [2010] SASC 308, discussed.

TAYLOR v THE MEDICAL BOARD OF SOUTH AUSTRALIA (NO 2)
[2010] SASC 331

Civil

1. ANDERSON J.     In this matter I dismissed an appeal from a decision of the Medical Board on 9 November 2010: see Taylor v Medical Board of South Australia [2010] SASC 308.

2. The Board has applied for costs, arguing that it was successful in the appeal and that costs should follow the event. Mr Heywood-Smith QC, counsel for Dr Taylor, argued that she was partially successful in the appeal and therefore it is not a straightforward case of costs following the event.

3. Dr Taylor did succeed on one ground of the appeal, namely, that the chairperson of the Board should have disqualified himself because of an apprehended bias. This was the first ground of appeal argued as a separate matter and it occupied some time in court.

4. In addition Dr Taylor argued that she was successful in the appeal to the extent that I indicated a different view from that expressed by the Board. This related to the time that the appellant should wait before applying again for reinstatement. In my reasons I said that the appellant should be able to re-apply in 12 months time, that is, 12 months from the date of my decision, whereas the Board had said that she should not be able to re-apply for several years. Dr Taylor was also partially successful on an application to adduce new evidence on appeal.

5. The appellant has no real ability to pay any amount awarded against her for costs until she is in receipt of a regular income. Her own legal costs have been met to date by the medical defence fund but it was a condition of the grant of her legal assistance that she was liable to pay any costs awarded against her in the event of an unsuccessful appeal.

6. The parties have provided me with schedules of their costs calculated on a party and party basis.

7. Mr Walsh QC for the Board concedes that there should be some reduction from his client’s entitlement to costs because of Dr Taylor’s partial success in the appeal. He conceded that 75% of the respondent’s costs would be an appropriate order. The schedule of costs provided was under cover of an email which stated that the respondent was seeking an order for 75% of the total amount of $59,877.86.

8. The schedules prepared by the parties are quite similar. The amount for the appellant’s costs is slightly higher than that of the respondent which is normal given that the appellant had the carriage of the appeal.

9. In round figures the respondent’s claimed party and party costs come to $60,000. That amount includes solicitor’s fees, senior counsel fees for Mr Walsh and junior counsel fees for Mr Ward. Within the solicitor’s fees there is a claim of $1,250 per day for an instructing solicitor to attend during the four days of the appeal. I do not consider that it is appropriate to claim for both an instructing solicitor’s fees for the hearing of the appeal together with that of junior counsel when both are from the same firm. It is my view that a reduction should be made so as to only allow the cost for an instructing solicitor in court for the four days at the solicitor’s rate claimed in the schedule, rather than the claim for junior counsel fees which has been submitted.

10. This results in an adjustment which on my calculations amounts to a reduction of just over $8,000.

11. In relation to the amount claimed for senior counsel, I have similarly discounted the amount claimed to a daily rate of $3,500 for the appeal with an appropriate adjustment for the hourly rate claimed for preparation and other attendances. This results in a reduction of about $6,000.

12. In round figures I would therefore reduce the lump sum of approximately $60,000 claimed to a lump sum of $46,000.

13. In the exercise of an overall discretion, I would allow the respondent two-thirds of this amount to reflect the appellant’s partial success in the two matters I mentioned earlier, namely, the time spent arguing the question of bias and my suggestion of an earlier time to re-apply for reinstatement. In addition there was a partially successful application for new evidence. I therefore make an order that the appellant pay the respondent’s costs fixed in the sum of $30,600.

14. Because of the appellant’s financial position, I will hear the parties as to how the amount awarded for costs should be paid or whether there should be a stay of the order for some, and if so, what time.