MD v Sydney South West Area Health Service (No 4) [2009] NSWDC 92

MD v Sydney South West Area Health Service (No 4) [2009] NSWDC 92

It was not unreasonable for the plaintiff to retain senior counsel for the purposes of cross-examining the second defendant, and those costs should be allowed as against the second defendant. The circumstances did not justify indemnity costs in favour of the first defendant, as the costs were not increased after both defendants were represented by the same solicitors, and there was no independent evidence against the first defendant.

Parties
Plaintiff: MD; First Defendant: Sydney South West Area Health Service; Second Defendant: Ian Fulcher
Jurisdiction
Australia
Judgment Date
08 April 2009
Procedural Posture
Civil / Costs Judgment After Verdict
Outcome
Orders as to costs made between parties
Legal Topics
Costs, Senior Counsel, Indemnity Costs
Civil Procedure Costs Senior Counsel Indemnity Costs

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 2 Authorities cited 2 Party arguments 2
Sign in to unlock

Parties

MD

Plaintiff

Sydney South West Area Health Service

First Defendant

Ian Fulcher

Second Defendant

Procedural Posture

Civil / Costs Judgment After Verdict

Legal Issues

  1. 1 Whether the costs of senior counsel should be awarded against the second defendant
  2. 2 Whether indemnity costs should be awarded to the first defendant

Ratio Decidendi

It was not unreasonable for the plaintiff to retain senior counsel for the purposes of cross-examining the second defendant, and those costs should be allowed as against the second defendant. The circumstances did not justify indemnity costs in favour of the first defendant, as the costs were not increased after both defendants were represented by the same solicitors, and there was no independent evidence against the first defendant.

Court Disposition

Orders as to costs made between parties

Orders

  • The second defendant pay the plaintiff's costs on a party and party basis up to and including 20 June 2008, and thereafter pay the costs on an indemnity basis, including the costs of senior counsel.
  • The plaintiff pay the costs of the first defendant up to and including 15 September 2008. After that date there will be no order for costs as concerns the plaintiff and the first defendant.