Greenbaum v Waikato District Health Board

[2022] NZHC 2074

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2017-419-55

[2022] NZHC 2074

BETWEEN

ADAM RAPHAEL GREENBAUM

Plaintiff

AND

THE WAIKATO DISTRICT HEALTH BOARD

First Defendant

TOM GORDON WATSON

Second Defendant

Hearing:	On the papers
Appearances:	K Lomas for Plaintiff P White for Defendants
Judgment:	19 August 2022

JUDGMENT OF LANG J

[on costs]

This judgment was delivered by me on 19 August 2022 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

Solicitors:

Braun Bond and Lomas Ltd, Hamilton J Long, Auckland

P N White, Auckland

GREENBAUM v THE WAIKATO DISTRICT HEALTH BOARD [2022] NZHC 2074 [19 August 2022]

[1]        Dr Greenbaum commenced this proceeding on 28 February 2017. He sought damages against the defendants on the basis that they had interfered unlawfully with the credentialling process at four private hospitals to which he unsuccessfully applied for acceptance.

[2]        The proceeding was set down for a trial of three weeks duration commencing on 25 July 2022. The trial was ultimately not necessary because Dr Greenbaum filed a notice of discontinuance on 7 April 2022. The parties have been unable to reach agreement regarding the issue of costs. I am therefore required to determine that issue on the basis of the memoranda counsel have filed.

[3]        Counsel for the defendants seeks costs totalling $33,092. This represents costs calculated on a Category 2 Band B basis but with an uplift of 100 per cent for interrogatories the defendants were required to answer after they had made Dr Greenbaum an offer of settlement in what is commonly known as Calderbank letter.

[4]        Counsel for Dr Greenbaum contends no uplift is required to reflect the fact that he declined to accept the settlement offer. In the alternative, he contends an uplift of no more than 50 per cent should be applied.

[5]        Dr Greenbaum also objects to the claim for costs in relation to discovery. He points out that discovery was undertaken informally and without the defendants being required to file and serve separate lists of documents.

Uplift for interrogatories

[6]        A major issue in this proceeding arose when Dr Greenbaum applied for non- party discovery of documents held by the private hospitals who declined his applications for acceptance. The private hospitals opposed the application and, in a judgment delivered on 19 June 2018, Toogood J dismissed it.1 Dr Greenbaum appealed against this decision, but the Court of Appeal dismissed the appeal.2 An application for leave to appeal to the Supreme Court was likewise dismissed.3

1      Greenbaum v Waikato District Health Board [2018] NZHC 1273.

2      Greenbaum v Southern Cross Hospitals Ltd [2019] NZCA 438.

3      Greenbaum v Southern Cross Hospitals Ltd [2019] NZSC 146.

[7]        On 20 January 2020, following receipt of the Supreme Court’s decision, the defendants’ solicitors wrote to Dr Greenbaum’s solicitors proposing that Dr Greenbaum discontinue his claim in return for a contribution towards his legal costs in the sum of $20,000. Dr Greenbaum declined this offer and proceeded to issue the defendants with notices to answer interrogatories. These resulted in the defendants filing lengthy answers to interrogatories on or about 6 May 2020.

[8]        The defendants say that, by the time they made their Calderbank offer, Dr Greenbaum was well aware he had no evidence to support his claim. They say his decision to proceed with interrogatories given that background and in the face of the Calderbank offer means he pursued an unnecessary step in the proceeding. He also failed to accept an offer of settlement without reasonable justification. They say these factors give rise to jurisdiction to make an award of increased costs.4

[9]        Dr Greenbaum opposes any award of increased costs. He says he still believed he had an arguable case against the defendants notwithstanding the failure to obtain non party discovery. He also says he was entitled to attempt to bolster his case by requiring the defendants to answer interrogatories after his application for non-party discovery had been dismissed.

[10]      I accept that Dr Greenbaum had reasonable justification for declining the offer of settlement because he did not know his claim could not succeed until he received the defendants’ answers to his interrogatories. I am also unable to say that the issuing of interrogatories amounted to an unnecessary step because he was entitled to pursue such means that were at his disposal to gather evidence for the proceeding. I therefore decline to award the defendants increased costs in relation to the administration of interrogatories.

Costs on discovery

[11]      The only list of documents on the Court file is that filed by the plaintiff on 28 February 2017. It is therefore evident that the defendants provided discovery on an informal basis. Counsel for the plaintiff suggests that the second defendant provided

4      High Court Rules 2016, r 14.6(3)(b)(ii) and (v).

no documents.    All documents for both defendants were discovered by the first defendant. The defendants have not taken issue with this assertion.

[12]      Even if formal lists or affidavits were not prepared, I accept that counsel for both defendants would still have been required to assemble the relevant documents and make them available for inspection. I therefore propose to make an allowance for discovery but at a reduced rate. The defendants will each be entitled to costs on discovery calculated at 1.75 of a day.

Lang J