FD v State of New South Wales [2006] NSWSC 1407

FD v State of New South Wales [2006] NSWSC 1407

Although mistakes were made in preparing FD's unusually difficult, underfunded and complex psychiatric negligence case, the circumstances did not make it fair or just to order Ms Waters personally to pay The Centre's thrown away costs. FD had arguable cases against the State and The Centre, the case depended on unpredictable oral evidence and contested expert psychiatric evidence, and Ms Waters acted on counsel's advice regarding the limitation issue. The State was not an unsuccessful defendant, had not engaged in misconduct, obtained a verdict in its favour, and The Centre would recover its costs of resisting the State's cross-claim; in all the circumstances it was not fair or just to...

Jurisdiction
Australia
Judgment Date
18 December 2006
Procedural Posture
Common Law Division Personal Injury Negligence Proceedings With Costs Applications / Determination of Applications for Non Party Costs Against Fd's Former Solicitor and for the State to Pay the Centre's Costs After Fd's Claim Against the Centre Was Dismissed and Verdict Entered for the State
Outcome
The Centre's applications for a personal costs order against Penelope Waters and for the State to pay The Centre's costs of defending FD's claim were dismissed; costs orders were made among FD, The Centre, the State and Ms Waters.
Legal Topics
['personal Costs Orders Against Solicitors' 'wasted Costs' 'sanderson and Bullock Costs Orders' 'alternative Defendants' 'sexual Abuse Counselling Negligence Allegations' 'disability and Limitation Periods']
['civil Procedure' 'costs' 'professional Responsibility' 'personal Injury Negligence' 'limitation of Actions'] ['personal Costs Orders Against Solicitors' 'wasted Costs' 'sanderson and Bullock Costs Orders' 'alternative Defendants' 'sexual Abuse Counselling Negligence Allegations' 'disability and Limitation Periods']

Case Brief

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Procedural Posture

Common Law Division Personal Injury Negligence Proceedings With Costs Applications / Determination of Applications for Non Party Costs Against Fd's Former Solicitor and for the State to Pay the Centre's Costs After Fd's Claim Against the Centre Was Dismissed and Verdict Entered for the State

Legal Issues

  1. 1 ['Whether Penelope Waters should personally pay or indemnify The Centre for costs thrown away due to the vacation of the 4 April 2005 hearing date and the adjournment on 29 September 2005.' "Whether the State should pay The Centre's costs of defending FD's claim against The Centre." 'Whether the circumstances justified an order analogous to a Sanderson or Bullock order.' "Whether FD's pleadings and particulars prevented her from pursuing her case against The Centre." 'Whether the alleged limitation issues against The Centre should have been prepared for and determined before trial.']

Ratio Decidendi

Although mistakes were made in preparing FD's unusually difficult, underfunded and complex psychiatric negligence case, the circumstances did not make it fair or just to order Ms Waters personally to pay The Centre's thrown away costs. FD had arguable cases against the State and The Centre, the case depended on unpredictable oral evidence and contested expert psychiatric evidence, and Ms Waters acted on counsel's advice regarding the limitation issue. The State was not an unsuccessful defendant, had not engaged in misconduct, obtained a verdict in its favour, and The Centre would recover its costs of resisting the State's cross-claim; in all the circumstances it was not fair or just to...

Court Disposition

The Centre's applications for a personal costs order against Penelope Waters and for the State to pay The Centre's costs of defending FD's claim were dismissed; costs orders were made among FD, The Centre, the State and Ms Waters.

Orders

  • ["Application by The Centre that the State pay The Centre's costs of resisting (defending) FDs claim against it dismissed." "As between the State and The Centre, each respectively bear its own costs of defending FD's claim again each; no order as to such costs." "FD pay The Centre's costs of the proceedings between...