Bartlett v Dr Wood and Ors

Judgment

By Notices of Motion filed 28 September 2022 by the First, Second, Fourth and Fifth Defendants, 4 October 2022 by the Third and Seventh Defendants, and 5 October 2022 by the Sixth Defendant, the defendants seek their respective costs for the preparation and attendances of Court appearances listed on:

30 September 2021;
4 November 2021;
13 December 2021;
14 February 2022;
15 February 2022;
29 March 2022;
6 May 2022, all payable forthwith.

The Third and Seventh Defendant's Notice of Motion seeks costs for the Second Defendant and does not seek costs for the preparation and attendance of Court appearances listed on 14 February 2022. I accept that this is an error, which is reflected by my notes taken in Court and on page 14 of the affidavit of Kate Hickey, affirmed 4 October 2022. Therefore, I understand that the Third and Seventh Defendants are seeking costs for its preparation and attendance of Court appearances listed on all seven dates noted above.
The Sixth Defendant does not seek any costs for the preparation of supplementary reports.

Background

The plaintiff seeks damages from the defendants for injuries he alleges occurred as a consequence of negligent medical treatment and advice provided to him by the defendants.
The proceedings have had a chequered history to date, which is dealt with extensively in the affidavits of Katherine Boshev affirmed 3 November 2022, Kelly Poh sworn 28 September 2022, Enoch Hui affirmed 26 September 2022 and Kate Hickey affirmed 4 October 2022.
I do not propose to repeat the history of the matter - suffice to say that there have been numerous directions hearings at which the Court has made orders which have consistently and repeatedly been breached by the plaintiff. The defendants have repeatedly tried, through correspondence, to urge the plaintiff to comply with Court orders to no avail.
The conduct of the proceedings by the plaintiff's solicitor is appalling. As I have stated, there were many breaches of Court orders and discourteous treatment of the defendants when the plaintiff's solicitor did not even respond to much of the correspondence.
Moreover, the most recent order made by her Honour Judge Gibson on 6 May 2022 ordered the plaintiff's solicitor to file and serve any affidavit with regard to the defendants' costs thrown away, by 5pm on 21 October 2022. It was served on 2 November 2022. The explanations provided for the continuing breach of orders and ignoring correspondence from the defendants, in the affidavit of Ms Boshev, are weak and unacceptable.
Counsel for the plaintiff very fairly conceded that the defendants ought to have their costs of the dates as sought, but objects to the costs being paid forthwith. Further, the plaintiff submits that the report of Dr Hay, for which leave to rely on it was granted by Gibson J, was in fact a response to the positive defence pleaded by some of the defendants under s 5O of the Civil Liability Act 2002 (NSW). On that basis, the plaintiff asserts that it would have been necessary to obtain the supplementary report in any event.
I do not accept that argument - the late service of Dr Hay's report necessitated the supplementary report of A/Prof Roche, Dr King and Dr Lancaster to respond to and meet the issues raised by Dr Hay. As such, the second, third and seventh defendants are entitled to the costs associated with that report.
The plaintiff objects to the costs being payable forthwith and notes that the plaintiff is an 89-year-old pensioner, and that if he had to pay the costs forthwith, that could limit his capacity to continue with his claim. I accept that to be the case.
The concept of a costs order is to compensate or indemnify a party in whose favour it is made, as opposed to punishing another party. That is the basis of a usual order for costs: Ohn v Walton (1995) 36 NSWLR 77 at 79 per Gleeson CJ.
Similarly, costs are usually payable at the conclusion of proceedings, and not during the course thereof.
The question of costs being paid forthwith was examined in Eastmark Holdings Pty Limited v Kabraji (No 2) [2012] NSWSC 1255 as follows: "[29] On the question whether the Plaintiff's costs should be payable forthwith, as stated, the general principle is that costs of a notice of motion await the final judgment of all issues between the parties: UCPR rule 42.7. There is thought to be a presumption against the making of an order for costs payable forthwith. [30] In Fiduciary Ltd v Morningstar Research Pty Ltd [2002] NSWSC at 432, at [11] - [13]; 55 NSWLR1, at 4-5, Barrett J (as his Honour then was) identified the following factors, which are not exhaustive, on an application for the payments of costs forthwith under the predecessor to UCPR rule 42.7 (Pt 52A r 9 of the Supreme Court Rules): "(i) where the costs order is relevant to a discrete, separately identifiable aspect of the proceedings; (ii) Where there is a demonstrated some unreasonable conduct on the part of the party against whom the costs have been ordered; (iii) Where the proceedings have some distance and time to run, and it may be some time before the ultimate disposition." [31] A fourth category was suggested by Palmer J in Tradright (NSW) Pty Ltd & Ors v Bank of Queensland Ltd (No 2) [2008] NSWSC 589 at [8]: "I do not think it could reasonably be gainsaid that the Bank would be in a better position than the Plaintiffs to bear the ongoing costs of the that litigation until its conclusion (the grammatical mistake is how it is in the jgmt!) I see no reason why the costs burdens on the Plaintiffs should be increased by withholding payment of costs to which they are entitled, possibly for a very long time indeed." [32] However, it is probably not best to categorise the circumstances in which the discretion may be exercised as it must depend upon all the circumstances of the case before the court: Plaza West Pty Ltd v Simon's Holdings (NSW) Pty Ltd (No 2) [2011] NSWSC 556, per Gzell J at [13]."
Further in Hall v Swan [2013] NSWSC 1758 McCallum J stated as follows: "[11] …The principles as to the circumstances in which it is appropriate for the Court to order otherwise are summarised in the annotations to the rules. They include circumstances where the costs have been incurred as a result of unreasonable conduct by the party against whom the order has been made; where the interlocutory proceedings relate to matters distinct from substantive issues in the proceedings: where the costs are significant and the time for payment may otherwise be too long postponed because of the state of the proceedings and where the interlocutory proceeding was unnecessary or unwarranted. It is also appropriate for the Court to have regard to any disparity between the parties' ability to pay their ongoing costs."
It is evident that the plaintiff, as an individual suing seven medical practitioners or entities, is in a very different position to the defendants, who are indemnified by insurers. I am of the view that to make the costs payable forthwith may well stultify the plaintiff's claim entirely.
I understand the absolute frustration that the defendants must feel given the very poor conduct of the case by the plaintiff's solicitor, but I think that to do justice between the parties, I will not make an order that the costs be payable forthwith.
I imagine that at the conclusion of the proceedings, whatever the outcome may be, the costs orders that I make today may be taken out of any verdict monies that the plaintiff might receive if his claim is successful.
In my view, these costs orders ought not be borne by the plaintiff personally if he is successful, but by his solicitors as it is their conduct, and not that of the plaintiff personally, which forms the basis upon which the costs have been awarded. There is nothing contained in the affidavit of the plaintiff's solicitor to suggest that any of the breaches of Court orders is in any way due to the conduct of the plaintiff. I make no order to that effect that these costs be borne by the plaintiff's solicitor, but I direct that this judgment be brought to the attention of and explained to the plaintiff, Mr Bartlett, by his solicitor, Ms Boshev or any other solicitor in that practice.

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Judgment (5 paragraphs)

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Legislation Cited (1)

Cases Cited (5)