South Eastern Sydney Area Health Service & Anor v King (No 2) [2006] NSWCA 73

South Eastern Sydney Area Health Service & Anor v King (No 2) [2006] NSWCA 73

The defendants failed to establish exceptional circumstances justifying refusal of indemnity costs. The first offer was a genuine compromise, the appeal result was no less favourable to the plaintiff than the offer, and the plaintiff's reliance on Bolitho did not introduce a significant new causation issue or a significant change in her case. The defendants were therefore liable for the plaintiff's costs of the appeal and cross-appeal on a party and party basis up to and including 14 June 2005 and on an indemnity basis thereafter.

Jurisdiction
Australia
Judgment Date
13 April 2006
Procedural Posture
Costs Application Following Appeal and Cross Appeal in Medical Negligence Action / Court of Appeal; Matter Proceeded by Written Submissions After Defendants' Appeal Was Dismissed and Plaintiff's Cross Appeal Was Allowed
Outcome
Defendants ordered to pay the plaintiff's costs of the appeal and cross-appeal up to and including 14 June 2005 on a party and party basis, and thereafter on an indemnity basis.
Legal Topics
['offers of Compromise' 'indemnity Costs' 'party and Party Costs' 'pending Proceedings Under the Civil Procedure Act 2005' 'appeal and Cross Appeal']
['civil Procedure' 'costs' 'medical Negligence'] ['offers of Compromise' 'indemnity Costs' 'party and Party Costs' 'pending Proceedings Under the Civil Procedure Act 2005' 'appeal and Cross Appeal']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Costs Application Following Appeal and Cross Appeal in Medical Negligence Action / Court of Appeal; Matter Proceeded by Written Submissions After Defendants' Appeal Was Dismissed and Plaintiff's Cross Appeal Was Allowed

Legal Issues

  1. 1 ['Whether the first offer of compromise was to be tested under the Supreme Court Rules 1970 or the Uniform Civil Procedure Rules 2005.' 'Whether the consequences of failing to accept the first offer were governed by the Uniform Civil Procedure Rules 2005 as applied to pending proceedings.' "Whether exceptional circumstances justified the defendants' failure to accept the plaintiff's offers of compromise so as to deny indemnity costs." "Whether the plaintiff's reliance on Bolitho v City and Hackney Health Authority [1998] AC 232 amounted to a significant new issue or change in case on appeal."]

Ratio Decidendi

The defendants failed to establish exceptional circumstances justifying refusal of indemnity costs. The first offer was a genuine compromise, the appeal result was no less favourable to the plaintiff than the offer, and the plaintiff's reliance on Bolitho did not introduce a significant new causation issue or a significant change in her case. The defendants were therefore liable for the plaintiff's costs of the appeal and cross-appeal on a party and party basis up to and including 14 June 2005 and on an indemnity basis thereafter.

Court Disposition

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

Orders

  • ["The defendants are to pay the plaintiff's costs of the appeal and of the cross-appeal up to and including 14 June 2005 on a party and party basis, and thereafter on an indemnity basis."]