Walshe v Prest [No 2] [2005] NSWCA 359 (20 October 2005)

CITATION: Walshe v Prest [No. 2] [2005] NSWCA 359

FILE NUMBER(S):

40820/04

HEARING DATE(S): 5 September 2005

JUDGMENT DATE: 20/10/2005

PARTIES:

Cheryll Walshe v Tamara Prest by her next friend Darren Prest [No. 2]

JUDGMENT OF: Giles JA Basten JA Campbell AJA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 31 of 2002

LOWER COURT JUDICIAL OFFICER: Ashford DCJ

COUNSEL:

S.G. Campbell SC (Appellant)

D.T. Kennedy SC/M.J. Perry (Respondent)

SOLICITORS:

Curwood & Partners (Appellant)

Taylor & Scott (Respondent)

CATCHWORDS:

LEGISLATION CITED:

Health and Other Services (Compensation) Care Charges Act 1995 (Cth)

DECISION:

Vary order (2) made on 27 September 2005 in these proceedings so that it reads

- Appellant to pay the Respondent's costs of the appeal on an indemnity basis.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40820/04

GILES JA

BASTEN JA

CAMPBELL AJA

20 October 2005

CHERYLL WALSHE v TAMARA PREST

By her next friend DARREN PREST [NO. 2]

Judgment

1 THE COURT: On 27 September 2005 the Court delivered judgment, dismissing the appeal and ordering that the Appellant pay the Respondent’s costs of the appeal. Paragraph 3 of the orders was in the following terms:

(3) If the parties are unable to agree the basis on which costs are to be assessed, both parties have liberty to file short written submissions as to the basis of calculation of costs of the appeal, within 7 days.

2 On 7 October 2005 the Court received a letter from the solicitors for the Respondent seeking, by consent, the following orders:

(1) Appellant to pay the Respondent’s costs of the appeal on an indemnity basis.

(2) After compliance with the provisions of the Health & Other Services (Compensation) Act 1995, the Appellant to pay the balance of the judgment debt into Court.

(3) The Registrar to pay the balance of the moneys paid into Court to the Public Trustee and investment [sic] on behalf of the Respondent until the Respondent attains the age of 18 years.

3 With minor variations, including inaptly, in order (3), substitution of the phrase “and investment” in place of “for investment”, proposed new orders (2) and (3) reflect the final directions given by the trial judge.

4 Because the appeal has been dismissed, the directions given by the trial judge stand. (They were not challenged in any event, except, no doubt, consequentially upon other orders falling.) The reference in the second order presently sought should be to the Health and Other Services (Compensation) Care Charges Act 1995 (Cth), but nothing turns on this. There was no evidence before the Court that a stay had been granted in relation to the orders made by the District Court, but that may be the fact. If there was a stay, it presumably expired upon the delivery of judgment by this Court. The need for orders 2 and 3 not being shown, they should not be made. Leave was not granted to seek the making of orders other than as to the basis of assessment of costs.

5 In relation to proposed order (1), the Court will vary its order (2), as made on 27 September 2005, to add at the end the words “on an indemnity basis”. Whether there is any purpose in doing that is unclear. The liberty to apply was granted on the basis that the parties were unable to agree as to the basis on which costs were to be assessed. Since the parties are in agreement, there appears to be no need for the variation

6 In the circumstances, the order of the Court is:

Vary order (2) made on 27 September 2005 in these proceedings so that it reads:

Appellant to pay the Respondent’s costs of the appeal on an indemnity basis.

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LAST UPDATED: 20/10/2005