Hawkesbury District Health Service Limited & Anor v Patricia Chaker (No 2) [2011] NSWCA 30 (28 February 2011)

Last Updated: 30 March 2011

Court of Appeal New South Wales

Case Title:	Hawkesbury District Health Service Limited & Anor v Patricia Chaker (No 2)
Medium Neutral Citation:	[2011] NSWCA 30
Hearing Date(s):	On the papers
Decision Date:	28 February 2011
Jurisdiction:
Before:	ALLSOP P, BEAZLEY JA, HOEBEN J
Decision:	(1) Order 5 of the orders made on 25 November 2010 should be varied as follows: 5. That the respondent pay Dr Tompsett's costs of the appeal except for the costs of and associated with the written submissions and narrative statement filed by Dr Tompsett on 2 November 2009. (2) Order 9 of the orders made on 25 November 2010 should be varied as follows: 9. The Hospital is to pay the respondent's costs of its application for leave to appeal and its appeal against his Honour's orders in respect of its costs. (a) Up to and including 24 August 2009 on the ordinary basis and; (b) From 25 August 2009 on an indemnity basis. (3) UCPR 42.34 is not to apply to the hearing in the Common Law Division. (4) All questions of fact pertaining to liability are open to be determined in the hearing in the Common Law Division. (5) The respondent is to have a Certificate under the Suitors Fund Act 1951 if otherwise qualified. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	COSTS - whether costs should depart from general rule that costs follow the event - successful appellant fails on separable ground of appeal - effect of the abandonment of one ground of appeal - effect of non-compliance with UCPR 51.36 in filing written submissions and narrative statement.
Legislation Cited:	Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005
Cases Cited:	Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 Hawkesbury District Health Service Ltd & Anor v Patricia Chaker [2010] NSWCA 320 Quest Rosehill Pty Ltd v White [2010] NSWSC 1190 at [67]
Texts Cited:
Category:	Consequential orders
Parties:	Hawkesbury District Health Service Limited - First Appellant Elizabeth Tompsett - Second Appellant Patricia Chaker - Respondent
Representation
- Counsel:	Counsel: Ms J Sandford - Appellants Mr K Connor SC/Ms M Avenell - Respondent
- Solicitors:	Solicitors: TressCox Lawyers - Appellants Lamrocks Solicitors & Attorneys - Respondent
File number(s):	2009/298279
Decision Under Appeal
- Court / Tribunal:
- Before:	Delaney DCJ
- Date of Decision:	10 June 2009
- Citation:
- Court File Number(s)	36/2006
Publication Restriction:

Judgment

1. THE COURT: Judgment in this matter was delivered on 25 November 2010: Hawkesbury District Health Service Ltd & Anor v Patricia Chaker [2010] NSWCA 320. The appeal by the second appellant, Dr Tompsett, was allowed. The matter was remitted for a rehearing limited to liability with damages to be assessed as in the first trial if liability were found in favour of the respondent. The respondent was ordered to pay Dr Tompsett's costs of the appeal.
   
2. On 10 December 2010 the respondent's legal advisers sought and were granted leave to file further submissions as to costs. The respondent submitted that the Court should substitute the costs order with an order that the respondent should have her costs of Dr Tompsett's "damages appeal" or alternatively, that there should be no order as to the costs of the "damages appeal". She also sought orders that Dr Tompsett should not have her costs of two other discrete parts of the appeal.
   

Costs of damages appeal

3. The respondent submitted that she had been successful in resisting Dr Tompsett's challenge to the damages awarded in the first trial. She submitted that because that issue was readily separable from other issues in the appeal, she should have her costs in accordance with the provisions of UCPR 41.2. That rule provides:
   

"42.1 Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs."

4. The respondent submitted that since she had succeeded in relation to that "event" she should have her costs of it. She submitted that such an approach was in accordance with s56 of the Civil Procedure Act 2005 (CPA) which provides a mandatory interpretive principle in relation to the UCPR. The respondent submitted that such an interpretation would have the beneficial effect of causing appellants to think carefully about whether they wished to add a damages appeal to an appeal on liability.
   

Abandonment of Ground of Appeal 31

5. Ground 31 of the appeal read:
   

"31 His Honour's conduct of the trial miscarried by reason of his Honour's undue interference with the orderly presentation of the oral evidence adduced on behalf of the second appellant, through its experts."

This ground of appeal was abandoned on the first day of the hearing of the appeal.

6. The respondent submitted that this ground of appeal raised a discrete issue. It should have been abandoned at an earlier point in time if Dr Tompsett did not wish to rely upon it. She submitted that Dr Tompsett should therefore pay her costs associated with preparing to argue that ground.
   

Amendment of Dr Tompsett's written submissions and Narrative Statement

7. UCPR 51.36 restricts a party's written submissions on appeal to 20 pages and a rule 51.36(2) statement to 20 pages. On 2 November 2009 Dr Tompsett served written submissions comprising more than 27 pages and a statement comprising 20 pages, both in very small print. Much of the statement was made up of further submissions.
   
8. On 6 May 2010 Beazley JA ( who was case managing the appeal) directed Dr Tompsett to file and serve amended submissions limited to 25 pages in 12 point and an amended narrative statement complying with the rules and not including further submissions. At the time these orders were made, the respondent had not replied to the first written submissions and narrative statement.
   
9. The respondent submitted that she should not have to pay Dr Tompsett's costs of the first written submissions and first narrative statement but that Dr Tompsett should pay her costs wasted because of Dr Tompsett's failure to comply with the rules.
   

Consideration
Costs of Damages Appeal

10. The respondent's reliance upon UCPR 42.1 is misconceived. The rule does not envisage a trial or an appeal being divided into a series of discrete "events" in respect of which one party may be successful as to some and another party successful as to others. What the rule envisages is the substance and reality of the outcome of a proceeding.
    
11. That proposition was explained by Ward J in Quest Rosehill Pty Ltd v White [2010] NSWSC 1190 at [67]:
    

"I have previously had occasion to refer to what was said in the English Court of Appeal in Roache v News Group Newspapers [1992] TLR 551 (as cited by the Queensland Court of Appeal in Timms v Clift [1997] QCA 61; [1998] 2 Qd R 100) where the question as to who was to be seen as the successful party "in the event" was posed as being a question as to "[w]ho, as a matter of substance and reality, had won? ..."

12. What the respondent was really submitting was that the damages part of the appeal was readily separable from the liability issues and that since she had succeeded on that issue, there should be some adjustment of the costs order in her favour.
    
13. The applicable principles were summarized in Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 (Beazley, Ipp and Basten JJA) as follows:
    

"38 The principles governing the making of an order as to costs so as to reflect the time taken in dealing with a particular issue in which the successful party in the proceedings or on the appeal did not succeed were reviewed by this Court in Elite Protective Personnel Pty Ltd & Anor v Salmon (No 2) [2007] NSWCA 373. Those principles may be summarised as follows:

Where there are multiple issues in a case the Court generally does not attempt to differentiate between the issues on which a party was successful and those on which it failed. Unless a particular issue or group of issues is clearly dominant or separable it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed: Waters v P C Henderson (Aust) Pty Ltd (Court of Appeal, 6 July 1994, unreported).

In relation to trials it has been said that it may be appropriate to deprive a successful party of costs or a portion of the costs if the matters upon which that party was unsuccessful took up a significant part of the trial, either by way of evidence or argument: Sabah Yazgi v Permanent Custodians Limited (No 2) [2007] NSWCA 306 at [24]. A similar approach is adopted on appeal.

If the appellant loses on a separate issue argued on the appeal which has increased the time taken in hearing the appeal, then a special order for costs may be appropriate which deprives the appellant of the costs of that issue: Sydney City Council v Geftlick & Ors (No 2) [2006] NSWCA 374 at [27].

Whether an order contrary to the general rule that costs follow the event should be made depends on the circumstances of the case viewed against the wide discretionary powers of the court, which powers should be liberally construed: State of New South Wales v Stanley [2007] NSWCA 330 at [18] per Hislop J (with whom Beazley and Tobias JJA agreed).

A separable issue can relate to " any disputed question of fact or law " before a court on which a party fails, notwithstanding that they are otherwise successful in terms of the ultimate outcome of the matter: James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [34].

Where there is a mixed outcome in proceedings, the question of apportionment is very much a matter of discretion and mathematical precision is illusory. The exercise of the discretion depends upon matters of impression and evaluation: James v Surf Road Nominees Pty Ltd (No 2) , citing Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd [1993] FCA 259; (1993) 26 IPR 261 at 272.

These principles were applied in City of Canada Bay Council v Bonaccorso Pty Ltd (No 3) [2008] NSWCA 57 at [22] and most recently in Turkmani v Visvalingham (No 2) [2009] NSWCA 279."

14. In the appeal the damages issues were addressed with brevity, both in written submissions and at the hearing. The consideration of the quantum issues did not increase the hearing time or otherwise take up "a significant part" of the appeal. The fact that one issue on which a party failed on the appeal is separable or discrete is not, without more, sufficient to warrant departure from the ordinary rule.
    
15. The overwhelming focus of both parties was on the issue of liability. This was clear from the written and oral submissions. In the particular circumstances of this case THE Court is not persuaded that the costs order in favour of Dr Tompsett should be disturbed because she failed on the damages part of her appeal.
    

Abandonment of Ground of Appeal 31

16. This ground was directed to the manner in which Professor Fletcher and his evidence was treated. At the hearing of the appeal, the Court granted leave to Dr Tompsett to amend the notice of appeal to incorporate within Ground 32 that his Honour erred "in striking out oral evidence given by Professor Fletcher". This had the effect of rendering the abandonment of Ground 31 inconsequential. The issues addressed in the written and oral argument relating to that ground of appeal were subsumed by Ground 32.
    
17. The part played by the evidence of Professor Fletcher and its potential effect formed an important part of the conduct of the appeal and of the judgment. It follows that the abandonment of Ground 31 had no effect on the conduct of the appeal and should not lead to any adjustment of the costs order in favour of Dr Tompsett.
    

Amendment of Dr Tompsett's written submissions and narrative statement

18. UCPR 51.36 and 51.36(2) are clear in their meaning. As was properly conceded by Dr Tompsett, the written submissions and narrative statement filed on her behalf on 2 November 2009 did not comply with those rules. It was not until Beazley JA made orders on 6 May 2010 that compliance with the rules was achieved. The effect of the orders of Beazley JA was to produce submissions and a narrative statement which not only complied with the rules but which were significantly more concise and coherent.
    
19. This Court has on a number of occasions sought to remind the profession of the importance of compliance with the rules in relation to appeals. The rules as presently formulated are the product of the Court's experience over a number of years and are designed to assist not only the Court in resolving appeals expeditiously but the parties in setting out their arguments succinctly and effectively.
    
20. The submissions and statement filed on 2 November 2009 were not only in breach of the rules but served no useful purpose. The respondent should not have to pay Dr Tompsett's costs relating to their preparation. The costs order in favour of Dr Tompsett should be adjusted accordingly.
    

Conclusion

21. The respondent's motion seeking an adjustment of the costs orders also sought other orders which she submits were not made when the appeal was disposed of but which for completeness should now be made. The appellants agree that those other orders should now be made.
    
22. Accordingly, the Court makes the following orders:
    

(1) Order 5 of the orders made on 25 November 2010 should be varied as follows:

5. That the respondent pay Dr Tompsett's costs of the appeal except for the costs of and associated with the written submissions and narrative statement filed by Dr Tompsett on 2 November 2009.

(2) Order 9 of the orders made on 25 November 2010 should be varied as follows:

9. The Hospital is to pay the respondent's costs of its application for leave to appeal and its appeal against his Honour's orders in respect of its costs.

(a) Up to and including 24 August 2009 on the ordinary basis and;

(b) From 25 August 2009 on an indemnity basis.

(3) UCPR 42.34 is not to apply to the hearing in the Common Law Division.

(4) All questions of fact pertaining to liability are open to be determined in the hearing in the Common Law Division.

(5) The respondent is to have a Certificate under the Suitors Fund Act 1951 if otherwise qualified.

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