Chandrasekaran v Western Sydney Local Health District t/a Westmead Hospital

Costs

1. Mr King submitted that the second defendant ought pay the plaintiff's costs of the motion on an indemnity basis. He contended that there was really no basis for the second defendant to bring its notice of motion since the plaintiff plainly had arguable causes of action against it. As I have said earlier in my reasons, I regard the deficiencies in the amended statement of claim as being an effective cause of the second defendant's notice of motion. In these circumstances, it is not appropriate that indemnity costs be ordered against the second defendant. It is important, where pleadings are, for whatever reason, deficient, that a party bring these matters to the Court's attention. It is understandable that the second defendant framed its notice of motion in the way in which it did (as opposed to a motion to strike out the plaintiff's pleading against it), although, as it has turned out, I propose to make directions about the pleading.
2. Mr King further contended that the plaintiff ought have her costs on an indemnity basis as the second defendant's application was bound to fail because of the principle enunciated in Wickstead v Browne (1992) 30 NSWLR 1, which was the subject of consideration by the Court of Appeal in Ford v Nagle [2004] NSWCA 33. I do not regard those cases as relevant to the present. Those cases established, and applied, the principle that a plaintiff's claim against one defendant ought not be summarily dismissed if any deficiency in the plaintiff's case could be made good by evidence from the other defendant. The application made by the second defendant in the present case was that the proceedings against it be dismissed on the basis that no reasonable cause of action is disclosed. The second defendant's submissions were put on the basis of a pleading which did not allege any cause of action against the second defendant at all. The single allegation in the amended statement of claim against the second defendant was contained in [15] of the pleading and merely alleged the contents of an email. There was no allegation that it was defamatory or that it amounted to an injurious falsehood. There was thus no allegation of any cause of action.
3. It was, in these circumstances, not inappropriate for the motion to be brought although the second defendant has not, for the reasons given above, been successful. The reason for the dismissal of the notice of motion is that there appears to be at least one cause of action which the plaintiff ought be permitted to bring notwithstanding that it is not apparent from the current pleading.
4. Mr King submitted, in the alternative, that the second defendant ought pay the plaintiff's costs of the notice of motion on the ordinary basis.
5. The general rule is that costs follow the event (UCPR, r 42.1). However, for the reasons I have already given, it appears to me that the effective cause of the second defendant's notice of motion was the deficiencies in the plaintiff's pleaded claim. Had the plaintiff made it plain in her pleading that she brought proceedings in defamation against the second defendant, the second defendant would have been able to appreciate that there was at least one cause of action disclosed by the pleading.
6. The first and second defendants agreed with my suggestion that costs be reserved. Mr King submitted that it was undesirable that costs be reserved and that, since I heard the notice of motion, I ought determine the question of costs. I accept this submission and am persuaded that it would be more appropriate to determine the question of costs now rather than reserve it for a later date.
7. In my view, having regard to the matters I have referred to above, it is appropriate that there be a departure from the general rule that costs follow the event. I consider that each party ought bear its or her, as the case may be, own costs of the notice of motion. As I have said, the effective cause of the motion was the plaintiff's deficient pleading and, in those circumstances, it is not appropriate that the second defendant ought bear the plaintiff's costs of the notice of motion, notwithstanding that it has been dismissed.

Proposed transfer

1. There is a further matter, which I raised with the parties and that is whether the Court should at some stage refer the matter to another court, as it would appear that the plaintiff's claim may fall well below the jurisdictional limit of this Court. I drew the parties' attention to s 146 of the Civil Procedure Act.
2. As this matter was not raised by any of the parties and has been raised by the Court today, I am satisfied that it is not appropriate that I make an order of that nature today. However, I note that I have foreshadowed that an order of that type may well be considered by the Court, whether on application by any of the parties, or by the Court of its own motion. I accept that today is not the day for such an order to be made and it would be preferable for the plaintiff's pleading to be in a better state, before consideration is given to any such transfer.

Orders

1. For the reason given above, I make the following orders: 1. By consent of the first and second defendants, strike out paragraphs [15] and [16(d)] of the amended statement of claim filed on 10 September 2018; 2. Direct the plaintiff to file and serve a further amended statement of claim by 23 November 2018. 3. By consent, dismiss the second defendant's notice of motion filed 21 September 2018. 4. Order that each party pay its or her own costs of the second defendant's notice of motion filed 21 September 2018. 5. Stand the proceedings over to the Registrar's list on 27 November 2018 for further directions.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 November 2018