Chahoud v Koleda (No 2) [2008] NSWSC 1393

New South Wales Supreme Court

CITATION : Chahoud v Koleda (No 2) [2008] NSWSC 1393

HEARING DATE(S) : Written submissions

JUDGMENT DATE : 23 December 2008

JURISDICTION : Common Law

JUDGMENT OF : Rothman J

(i) Judgment for the defendant;

DECISION : (ii) The proceedings be dismissed;

(iii) The plaintiff pay the defendant's costs of and incidental to the proceedings, as agreed or assessed.

CATCHWORDS : PRACTICE AND PROCEDURE – motion to strike out – cause of action in negligence previously dismissed summarily – nothing left in proceedings – alternatively, witness immunity applies – proceedings dismissed - COSTS – follow the event – orders made

LEGISLATION CITED : Civil Procedure Act 2005

CATEGORY : Consequential orders

Cabassi v Vila [1940] HCA 41; (1940) 64 CLR 130 CASES CITED : Chahoud v Koleda [2008] NSWSC 1060 Commonwealth of Australia v Griffiths & Anor [2007] NSWCA 370 Ollis v New South Wales Crime Commission [2007] NSWCA 311

PARTIES : Assem Chahoud (Plaintiff) Victor Koleda (Defendant)

FILE NUMBER(S) : SC 20297/2005

COUNSEL : B Dennis - Solicitor (Plaintiff) J K Kirk (Defendant)

SOLICITORS : Dennis & Co Solicitors (Plaintiff) Blake Dawson Lawyers (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

ROTHMAN J

23 DECEMBER 2008

20297/2005 Assem Chahoud v Victor Koleda (No 2)

JUDGMENT 1 HIS HONOUR: On 10 October 2008, the Court delivered judgment on three preliminary questions which were sought to be answered in relation to this matter: Chahoud v Koleda [2008] NSWSC 1060 ("the earlier judgment"). As is made clear in the earlier judgment, the three questions went to the heart of the proceedings against the defendant, but, because any other issue may not have been fully ventilated before the Court, during the earlier proceedings, I left open (paragraph [49] of the earlier judgment) the issue of consequential orders and what, if any, orders ought be made in relation to costs. 2 I granted liberty for the parties to apply for any consequential order, or order as to costs, within 14 days of the earlier judgment, with a further 7 days being allowed for the filing of any response. The defendant has applied for a consequential order, namely, the dismissal of the proceedings. The defendant has also applied for costs. No submissions have been made in response to those of the defendant. The lack of a response is, in some senses, understandable, as there is little, if anything, that could be put that would prevent the orders, as sought, being made. 3 As made clear in the earlier judgment, the cause of action pursued in the proceedings is one of negligence, although there may have been some suggestion (albeit peripheral) of a cause of action based on some deliberate tort. 4 Whatever be the cause of action, the defendant, Dr Koleda, claimed immunity from suit as a witness. That immunity was upheld. 5 To the extent that the statement of claim suggests (and I accept the submission of the defendant that the terms of paragraph 24 of the statement of claim are more apposite for an alleged particular of negligence, rather than any separate cause of action apart from negligence) any other relevant cause of action, the immunity applies and Dr Koleda is immune from suit: Chahoud v Koleda [2008] NSWSC 1060 at [44], citing Commonwealth of Australia v Griffiths & Anor [2007] NSWCA 370; Ollis v New South Wales Crime Commission [2007] NSWCA 311; Cabassi v Vila [1940] HCA 41; (1940) 64 CLR 130 at 141. 6 The defendant is entitled to the consequential order dismissing the whole of the proceedings. Costs 7 The discretion of the Court to award costs, conferred, inter alia, by s 98 of the Civil Procedure Act 2005, must be exercised judicially. The ordinary rule is that costs follow the event. Departure from that rule occurs only when it appears to the Court that some other order should be made, as a matter of justice between the parties, and usually for reasons associated with the conduct of the litigation. No such issues arise in these proceedings. Conclusion 8 The Court makes the following orders: