New South Wales Supreme Court CITATION : Charlton v Upjohn Company & Ors, Elliott v Upjohn Company & Ors, Hesse v Upjohn Company & Ors, Jacobsen v The Upjohn Company & Ors [2000] NSWSC 1090 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20605/95, 12590/93,12596/93; 12602/93 HEARING DATE(S) : 8 December 1999 JUDGMENT DATE : 6 October 2000 PLAINTIFFS - Jennifer Denise CHARLTON Haidee Mary ELLIOTT Peter Colin HESSE PARTIES : Paul JACOBSEN DEFENDANTS - UPJOHN COMPANY & ORS JUDGMENT OF : Simpson J COUNSEL : Written submissions PLAINTIFFS Maurice Blackburn Cashman DEFENDANTS Phillips Fox SOLICITORS : Blake Dawson Waldron Clayton Utz Tress Cocks & Maddox Ebsworth & Ebsworth Crown Solicitor Office of Western Australia Gray & Perkins CATCHWORDS : Submissions on costs following dismissal of applications for removal to the Court of Appeal and transfer of proceedings under Jurisdiction of Courts (Cross Vesting) Act 1987. LEGISLATION CITED : Trade Practices Act 1974 Jurisdiction of Courts (Cross Vesting) Act 1987 DECISION : Defendant/applicants to pay the plaintiffs' costs of the transfer and removal applications. THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION SIMPSON J 6 October 2000 20605/95 Jennifer Denise CHARLTON v UPJOHN COMPANY & Ors 12590/93 Haidee Mary ELLIOTT v UPJOHN COMPANY & Ors 12596/93 Peter Colin HESSE v UPJOHN COMPANY & Ors 12602/93 Paul JACOBSEN v THE UPJOHN COMPANY & Ors Judgment HER HONOUR : 1 More than one hundred plaintiffs have commenced proceedings in this court against a number of defendants, claiming damages for personal injuries they allege were caused by the negligence or other wrongdoing of the defendants in relation to the manufacture, distribution, prescription and/or administration of the drug Depo Medrol. 2 The plaintiffs plead causes of action in negligence, contract and under the Trade Practices Act 1974. They have named a variety of defendants, including medical practitioners who allegedly prescribed the drug, and hospitals where it was administered. Each plaintiff has also sued the Upjohn Company and Upjohn Pty Limited as manufacturer and distributor. 3 The present proceedings involve only four of the plaintiffs but these were acknowledged to be representative of the larger group. 4 Few of the plaintiffs or medical practitioner defendants are resident in NSW and few of the hospital defendants are located in NSW. The individuals come from all of the states and territories of Australia and the hospitals are located in various states and territories. None of the present four plaintiffs is resident in NSW, and none received Depo Medrol treatment in NSW. 5 Certain of the defendants (not including the Upjohn Companies) applied under s 5 of the Jurisdiction of Courts (Cross Vesting) Act 1987 for orders transferring the proceedings to the Supreme Court of the state or territory in which the drug was allegedly prescribed or administered and in which they (in the case of medical practitioners) are resident, or (in the case of the hospitals) are located. In 1996 certain defendants unsuccessfully sought an order that that application be removed to the Court of Appeal, and, notwithstanding my earlier refusal to adopt that course, and refusal by the Court of Appeal to grant those defendants leave to appeal against my refusal, the present defendant/applicants also re-agitated that application, in terms and for reasons not substantially different from those previously advanced. 6 The plaintiffs contested the applications for removal and the applications for transfer. On 22 December 1998 I dismissed the applications for removal and indicated that I proposed, subject to any order the Court of Appeal might make in the meantime, also to dismiss the applications for transfer. 7 No contrary order has been made by the Court of Appeal and it is therefore a formality that an order now be made dismissing the applications for transfer. The plaintiffs have, accordingly, sought orders that the defendant/applicants pay their costs of and incidental to the issues raised and determined adversely to the defendant/applicants. Further, they seek orders that the costs be assessed forthwith. 8 The defendant/applicants resist the making of an order for costs. On behalf of the medical practitioner defendants it was submitted, in effect, that they had adequate grounds to make the application. They referred particularly to passages in my judgment in which I acknowledged that there was some force in the arguments put forward in support of the transfer applications, and recognised the potential for increased cost and inconvenience to the defendants by the proceedings remaining in this court. 9 Recognition that an application is not without merit, or that the party making the application acted reasonably, or had reasonable grounds to initiate the application, does not affect the question of where the costs, after adjudication, are to lie. Any litigant is entitled to bring or defend proceedings, or to make or defend interlocutory applications. However, failure in that enterprise (whether the litigant is plaintiff or defendant) will ordinarily result in an order against that party for the costs of the other party. This is true whether the decision is a final determination of the proceedings, or resolution of a discrete but interlocutory issue. 10 The application made by the defendant/applicants was a discrete issue, and one on which they failed. There is no reason why the plaintiffs should not be entitled to recover the costs they incurred in defending those applications. 11 On behalf of one of the hospital defendants, the Townsville Hospital, it was submitted that, by reason of its status as a public institution, different considerations apply to the costs question. This argument revived some matters that have been raised in support of the transfer application, such as the contention that the State of Queensland was the proper forum for the proceedings which should therefore have been commenced in that state. In view of my decision on the transfer application that argument is no longer open to the hospital. It is, at best, merely another way of arguing that the hospital acted reasonably in making the application and that that it had some prospects of success. The fact is that the argument had insufficient merit, when balanced against the competing arguments, to secure the orders sought. 12 Nor can the status of the hospital as a public institution be a relevant consideration. The plaintiffs have been put to the expense of defending applications, defences they mounted successfully. It makes no difference to them that, in part, the applications were brought by a public hospital. 13 Some of the defendants alternatively argued that costs should be reserved until the conclusion of the substantive proceedings. I do not think this proposal should be acceded to. As I have noted above, the applications were discrete and independent applications, not dependent on any way upon the outcome of the principal claims. I reject this argument. 14 Similarly, I reject the suggestion that the costs of these applications should be costs in the cause. Such an order is appropriate where resolution of the particular interlocutory issue is necessary to, or intertwined with, the substantive proceedings. That is not the case here. The applications for transfer were not necessary steps in the process of the litigation of the plaintiffs' claims. 15 Further, it should not be overlooked that the defendant/applicants sought, without any substantial difference in circumstances, to re-argue the removal applications that had been decided against them previously. The applications the subject of the present costs determination were not limited to the applications for transfer. 16 The appropriate order is an order that the defendant/applicants pay the plaintiffs' costs of the transfer and removal applications. 17 The plaintiffs also seek, and the defendant/applicants resist, an order that the costs be assessed forthwith. This question has occasioned me more difficulty, but, ultimately, I can see no reason why it should be refused. The plaintiffs have already incurred the costs, and, as a result of my conclusion that a costs order should be made in their favour, they have a present entitlement to be reimbursed. All that stands between them and recovery of those costs is the formality of quantification. 18 It is true, as some defendants have pointed out in their written submissions, that the plaintiffs may not ultimately succeed in their claims, but that, at this stage, is pure speculation. The principal litigation must take its course. The transfer and removal applications are completed and they should be brought to finality by the assessment of the costs to which the plaintiffs are entitled and in respect of which the defendant/applicants are liable. 19 The plaintiffs are to bring in short minutes of order in each matter reflecting these reasons and conclusions. ********** Last Modified: 11/29/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.