Smithson v Baines No.2 [1999] NSWCA 193

New South Wales Court of Appeal CITATION : Smithson v Baines No.2 [1999] NSWCA 193 FILE NUMBER(S) : CA 40248/98 HEARING DATE(S) : By written submissions JUDGMENT DATE : 15 June 1999

PARTIES : Gail Joy Smithson & Anor v Russell George Baines JUDGMENT OF : Beazley JA at 1; Fitzgerald JA at 1; Sheppard AJA at 1

LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 14163/91 LOWER COURT JUDICIAL OFFICER : Dowd J

COUNSEL : C R R Hoeben SC (Appellant) J S Coombs QC/R I Goodridge (Respondent) SOLICITORS : Abbott Tout (Appellant) Firths (Respondent) CATCHWORDS : Costs; culpability for error involving use of net figures rather than gross figures; application to correct error under slip rule. DECISION : Appeal allowed with costs

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40248/98 CLD 14163/91

BEAZLEY JA FITZGERALD JA SHEPPARD AJA Tuesday, 15 June 1999

Gail Joy SMITHSON & Anor v Russell George BAINES

No.2

COSTS JUDGMENT

1 THE COURT: The Court gave judgment in this matter on 18 March 1999. It did not then make orders disposing of the appeal nor deal with the costs of the appeal. Instead, it invited written submissions in relation to those matters. These have been received and considered. 2 There were two issues in question in the appeal. One concerned the use by the primary Judge of gross, rather than net figures, and the other the question whether the decision of this Court in Kempsey District Hospital v Thackham (1995) 36 NSWLR 492 should be applied in the present case. The first of these issues was determined favourably to the appellant. The respondent succeeded in respect of the other. 3 We do not find it necessary to go over the ground dealt with in the earlier judgment. On the face of the submissions as to costs which have been lodged, there is a question whether the respondent continued to assert that the figures used in the judgment were net rather than gross, and if gross, whether the error should be corrected. The respondent's written submissions raise questions of culpability for the error which occurred and seek to lay the blame for the error entirely at the appellant's door. This matter is also dealt with in the earlier judgment and it is enough for us to say that it is plain on the Court's conclusions in that judgment that the mistake was the result of error on the part of the Judge and both counsel. But we repeat that it was the legal representatives of the respondent who made the initial error. Regrettably it was not picked up by counsel for the appellant or by the Judge. The fact that it was the initial error of the legal representatives of the appellant that precipitated the problem is something which counsel for the respondent has failed to recognise both at the hearing and in the present submissions. 4 Moreover, the appellant made an application to the primary Judge to have the error in the judgment corrected under the slip rule. The application was opposed. The Judge wrote a judgment in which he said that the earlier judgment should be corrected. No orders were, however, taken out to give effect to this decision. Nevertheless, one of the matters relied up by counsel for the respondent was that the Court had no jurisdiction under the slip rule to correct any error. So this appeal was brought, the appellant asserting that the Court should correct the error by substituting net figures for gross figures, and the respondent urging that it was not appropriate to make any correction and also denying the Court's jurisdiction to invoke the slip rule. All this is discussed in the earlier judgment. In the circumstances the Court thought the appropriate course was to allow the appeal in order to correct the error which had been made. 5 On the other hand, it decided that the appeal, insofar as it was based on Thackham, should be dismissed. On this basis the appellant succeeded on one point and the respondent on the other. The case occupied no more than one day. The appeal succeeded, albeit on one ground only. In those circumstances we have reached the conclusion that the appropriate order is that the respondent should pay the appellant's costs of the appeal. An order will be made to that effect. 6 We turn to the orders to be made. There is little difference in substance in the two suggested sets of orders submitted by the parties. The only difference is in the figure provided for loss of future earning capacity. The appellant contends that this should be $145,306 whilst the respondent contends that it should be $146,000. The difference is less than $700. We have reached the conclusion that the appropriate course is to adopt the respondent's figure. We see no reason to break up the amount of the award in the judgment itself. Accordingly, the orders that we make on the appeal are that the appeal be allowed with costs, the order made directing the entry of judgment made by Dowd J be set aside and that, lieu thereof, there be judgment for the respondent in the sum of $338,093.94. The appellants are to pay the respondent's costs of the proceedings before Dowd J except that there will be no order as to the costs of the application pursuant to the slip rule.