CRISP v KENG [1993] NSWCA 78

CRISP v KENG SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, PRIESTLEY and CRIPPS JJA 22 February, 2 March and 15 June 1993, 27 September 1993

[1993] NSWCA 78

COSTS — indemnity costs — offer of compromise — application of Pt52 R17 SCR — proceedings against surgeon and hospital for negligence — proceedings against hospital fail — proceedings against surgeon succeed upon one only of several particulars of negligence — judge enters judgment for $160,145 — offer by plaintiff to compromise his claim seven months before trial by accepting judgment of $70,000 plus costs — trial judge (Wood J) declines order for indemnity costs — otherwise orders, ie that defendant not pay such costs despite earlier offer of compromise — explains refusal by reference to (a) plaintiff's delay in bringing matter on for hearing; (b) refusal to supply witnesses' statements; (c) change of case at trial; and (d) failure of plaintiff on some issues — whether grounds relied on by judge irrelevant to the application for indemnity costs — whether judge insufficiently considers policy behind Pt52 R17 SCR — on appeal following grant of leave to appeal.

held: (Priestley and Cripps JJA; Kirby P dissenting): The provision of costs was within the discretion of the primary judge and would not be disturbed, no sufficient error having been shown in the exercise of the judge's discretion.

The Maitland Hospital v Fisher [No 2] (1992) 27 NSWLR 721 (CA) considered; Rudner v Government Insurance Office of New South Wales, Court of Appeal, unreported, 11 June 1992; (1992) NSWJB 50 and Wilkinson and Anor v Kenny and Anor [1993] 1 WLR 963 (CA) referred to.

Supreme Court Act 1970, s101(2)(c). Supreme Court Rules Pt52 R17.

Kirby P Before the Court is an appeal, pursuant to leave to appeal earlier granted, from a costs order made by Wood J. Leave to appeal was required by the Supreme Court Act 1970, s101(2)(c).