Fowkes v Parker [No. 2] [2000] NSWCA 113

New South Wales Court of Appeal

CITATION : Fowkes v Parker [No. 2] [2000] NSWCA 113 FILE NUMBER(S) : CA 40948/98 HEARING DATE(S) : Decided on written submissions JUDGMENT DATE : 4 May 2000

PARTIES : Dr Geoffrey Fowkes (Appellant) Maria Teresa Gabriella Parker (Respondent) JUDGMENT OF : Priestley JA at 1; Fitzgerald JA at 2; Davies AJA at 10

LOWER COURT JURISDICTION : District Court LOWER COURT 5505/97 FILE NUMBER(S) : LOWER COURT Williams J JUDICIAL OFFICER :

COUNSEL : P.L. Brereton SC (Appellant) D. Wheelahan QC / M. Williams (Respondent) SOLICITORS : Blake Dawson Waldron (Appellant) Abbott Pardy & Jenkins, Glen Innes (Respondent) CATCHWORDS : Costs DECISION : Order 6 of the orders made by this Court on 3 December 1999 is unconditional; Mrs Parker's application is dismissed with costs.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40948/98 DC 5505/97 PRIESTLEY JA FITZGERALD JA DAVIES AJA

THURSDAY 4 MAY 2000

FOWKES v PARKER [No.2]

JUDGMENT COSTS

1 PRIESTLEY JA: I agree with Fitzgerald JA. 2 FITZGERALD JA: Mrs Parker sued Dr Fowkes in the District Court. Her action was tried before His Honour Judge Williams and a jury of four. On 30 October 1998, the jury returned a verdict for Mrs Parker in the sum of $960,500. 3 Dr Fowkes appealed to this Court, and was partially successful. The jury's verdict that Dr Fowkes is liable to Mrs Parker stands, but a new trial was ordered, limited to the assessment of damages. In addition, the following orders were made in relation to costs: "… 5. Costs of first trial to be in the discretion of the judge presiding at the new trial. 6. Subject to order 7, half of the appellant's costs of the appeal to be borne by [Mrs Parker]. 7. Liberty reserved to either party, to apply within the period of 7 days after the making of these orders, if any question of indemnity costs in relation to the appeal needs to be argued." 4 This Court's judgment was delivered on 3 December 1999. On 31 January 2000, Mrs Parker applied for an order that she ".. be reserved leave to apply in respect of indemnity costs on the Appeal … following reassessment of damages by the Court below." Dr Fowkes has opposed that order. 5 Shortly stated, Mrs Parker relies upon an offer of compromise which she served on Dr Fowkes on or about 11 June 1998. It is unnecessary to refer to the amount which Mrs Parker agreed to accept or the other terms of that offer. Shortly stated, her argument is that the damages determined by the District Court at the retrial may exceed the amount which she agreed to accept by her offer of compromise. So much may be accepted. The remaining proposition in Mrs Parker's argument is that, if that occurs, she is entitled to be paid the costs of the appeal to this Court on an indemnity basis. Reliance was placed for that proposition on the decision of this Court in Ettingshausen v Australian Consolidated Press Ltd (1995) 38 NSWLR 404. 6 However, Ettingshausen was in a critically significant respect a different case. The material appeal by the plaintiff in the litigation related only to his claim for indemnity costs of a new trial limited to damages which this Court had ordered on the defendant's appeal against the verdict in favour of the plaintiff at the first trial. The plaintiff in the litigation was successful on his costs appeal to this Court, which held that he was entitled to indemnity costs in respect of the second trial because the damages with which he was then awarded exceeded the offer of compromise which he had made prior to the first trial. 7 There is nothing in Ettingshausen which suggests that in such circumstances a plaintiff is also entitled to the costs, on an indemnity basis or otherwise, of a successful appeal by a defendant against the amount of the damages awarded to the plaintiff at the first trial. On the contrary, as in this case, the plaintiff in Ettingshausen was ordered by this Court to pay a proportion of the costs of the successful defendant's appeal against the damages awarded to the plaintiff at the first trial. 8 The order for costs of the appeal to this Court made on 3 December 1999 took into account the possibility that at the new trial limited to damages, Mrs Parker may succeed in recovering an amount in excess of her offer of compromise prior to the first trial. Nonetheless, it was, and is, considered appropriate that Dr Fowkes should have part of the costs of his successful appeal against the damages awarded to Mrs Parker at the first trial. That is consistent with both Ettingshausen and the decision of this Court in Fotheringham v Fotheringham [No.2] (1999) 46 NSWLR 194. 9 Accordingly, order 6 of the orders made by this Court on 3 December 1999 should become unconditional, and Mrs Parker's application should be dismissed with costs. 10 DAVIES AJA: I agree with Fitzgerald JA. ******************************