Pierce v Metro North Hospital and Health Service

[2016] NSWSC 1731

Supreme Court

New South Wales

Medium Neutral Citation:

Pierce v Metro North Hospital and Health Service [2016] NSWSC 1731

Hearing dates:

In Chambers on the papers

Date of orders:

07 December 2016

Decision date:

07 December 2016

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

(1) Pursuant to r 36.16(3)(a) UCPR, set aside order 2 made on 3 November 2016 in these proceedings; and,

(2) Pursuant to r 42.14(2) UCPR, order that the defendant pay the plaintiff’s costs of the proceedings up to and including 5 June 2015 on the ordinary basis, and from 6 June 2015 on the indemnity basis.

Catchwords:

COSTS – indemnity costs - offer of compromise – plaintiff entitled to an order that the defendant pay costs on the indemnity basis - no question of principle

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Pierce v Metro North Hospital and Health Service [2016] NSWSC 1559

Category:

Costs

Parties:

Emily Pierce (Plaintiff)
Metro North Hospital and Health Service (Defendant)

Representation:

Counsel: D Graham SC with S Maybury (Plaintiff)
   J Glissan SC (Defendant)

  Solicitors: Edwards Michael Powell (Plaintiff)
   Corrs Chambers Westgarth (Defendant)

File Number(s):

2012/353698

Judgment

1. On 3 November 2016 I gave judgment in favour of the plaintiff in these proceedings in the sum of $1,672,790.75. My reasons for that decision are published in Pierce v Metro North Hospital and Health Service [2016] NSWSC 1559.

2. This judgment deals with the plaintiff’s application for indemnity costs pursuant to r 42.14 Uniform Civil Procedure Rules 2005 (NSW).

3. The plaintiff submitted that 3 offers of compromise were served on the defendant in these proceedings before the first day of the trial. They were as follows:

1. Offer dated 5 June 2015 to accept judgment of $1.5 million;

2. Offer dated 22 September 2015 to accept judgment of $850,000; and

3. Offer dated 30 October 2015 to accept judgment of $1 million.

4. The defendant did not file any submissions in response to this application. On 1 December 2015, an email was sent to chambers by the defendant’s solicitors confirming that no submissions would be made as to costs.

5. Accordingly, it is not disputed that the offers accorded with the requirements of r 20.26 UCPR; were properly served; that the defendant did not accept the first offer and let the second and third offers lapse; and that the ensuing judgment of this Court was no less favourable to the plaintiff than the terms of each offer.

6. The plaintiff is thereby entitled to an order against the defendant to pay the plaintiff’s costs on the indemnity basis as from the beginning of the day following the first offer on 5 June 2015. There is no reason why this Court should order otherwise.

Orders

7. I make the following orders:

1. Pursuant to r 36.16(3)(a) UCPR, set aside order 2 made on 3 November 2016 in these proceedings; and,

2. Pursuant to r 42.14(2) UCPR, order that the defendant pay the plaintiff’s costs of the proceedings up to and including 5 June 2015 on the ordinary basis, and from 6 June 2015 on the indemnity basis.

**********