South Western Sydney Area Health Service v Joseski [2007] NSWSC 351

New South Wales Supreme Court

CITATION : South Western Sydney Area Health Service v Joseski [2007] NSWSC 351

HEARING DATE(S) : 13/04/07

JUDGMENT DATE : 18 April 2007

JUDGMENT OF : Associate Justice Malpass

DECISION : The preliminary determination made by the Cost Assessor on 24 August 2006 is set aside. The decision is remitted to the Cost Assessor. The Costs Assessor is ordered to redetermine the application. The defendant is to pay the costs of this appeal.

CATCHWORDS : Damages recovered in respect of health care claim - assessment of order for costs - personal injury damages - application of s198D

Civil Liability Act 2002 (NSW) LEGISLATION CITED : Health Care Liability Act 2001 (NSW) Legal Profession Act 1987 (NSW)

PARTIES : South Western Sydney Area Health Service Steven Joseski

FILE NUMBER(S) : SC 14694/06

COUNSEL : Mr M. L. Brabazon (Pl) Mr J. W. Conomos (Def)

SOLICITORS : General Insurance Law Department (Pl) D. Stanefska & Associates (Def)

LOWER COURT JURISDICTION : Costs Assessor

LOWER COURT FILE NUMBER(S) : 00000133/06

LOWER COURT JUDICIAL OFFICER : Ms W. Strathdee

LOWER COURT DATE OF DECISION : 24/8/2006

LOWER COURT MEDIUM NEUTRAL CITATION : Joseski v South Western Area Health Service

- 5 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

ASSOCIATE JUSTICE MALPASS

18 APRIL 2007

14694/2006 SOUTH WESTERN SYDNEY AREA HEALTH SERVICE v STEVEN JOSESKI

JUDGMENT 1 HIS HONOUR: The defendant was a voluntary patient in the Mental Health Unit of the Liverpool Public Hospital. On 19 March 1999, whilst in the smoking room thereof, he was punched in the face by a fellow patient. As a result of the punch, the defendant suffered physical and psychological injury. 2 In the District Court, on 3 September 2001, he brought a claim for damages against the plaintiff. It was a claim founded on the tort of negligence. On 22 February 2005, he was successful in those proceedings (recovering a judgment in the order of $32,513). The plaintiff was ordered to pay his costs of the proceedings. 3 One of the issues confronting the Trial Judge was the question of the regime under which the damages were to be assessed (under the Civil Liability Act 2002 (NSW) (the CLA) or the Health Care Liability Act 2001 (NSW) (the HCLA)). 4 The Trial Judge came to the view that the HCLA applied and he assessed the damages accordingly. There has been no appeal from that decision. 5 On 31 January 2006, the defendant made application for an assessment of the costs payable under the order. The application was referred to a Costs Assessor (Ms Strathdee). The parties joined issue on a preliminary matter (whether or not the assessment was subject to s.198D of the Legal Profession Act 1987 (NSW) (the LPA)). 6 On 24 August 2006, the Cost Assessor gave her decision on the preliminary matter. She decided that the limitation on the amount of costs recoverable in the LPA and CLA did not apply to the costs in the proceedings. 7 In the reaching of that decision, she referred to what had been said by the Trial Judge in paragraphs 178-180 of his judgment (which dealt with his decision as to the applicable regime for the assessment of damages). 8 The Cost Assessor then observed as follows:- "There was nothing placed before me to indicate that there was any submission put before His Honour as to the appropriate regime as to costs. In my view if the Cost Respondent wished to dispute that the costs ought be assessed under legislation different to that which his Honour applied in assessing damages, that ought to have been done. It is not the role of a costs assessor to interpret the order of a Court but to apply it. In the absence of anything to the contrary it seems to me that the HCLA applies and that the LPA and CLA do not. Further, section 329 of the LPA 2004 provides regulations to provide for fixed costs. The regulation defines costs to be fixed under s329(1)(b) for personal injury damages "(within the meaning of the Civil Liability Act 2002)". The Trial Judge found that the CLA did not apply." 9 On 22 September 2006, the plaintiff filed a Summons in this Court. The plaintiff seeks to have the decision set aside on the basis of error of law. The plaintiff contends that the assessment of costs is governed by s.198D as modified by Part.19 of Schedule 8. 10 Section 198D fixes a maximum of costs of claims up to $100,000. If it has application in the present case, it would restrict the costs recoverable by the defendant at 20% of the amount recovered or $10,000, whichever is greater. As I understand the position, the costs claimed are well in excess of what is recoverable if s198D has application. 11 The section forms part of Division 5B of the LPA. Division 5B was introduced into the LPA by the CLA (which retrospectively commenced on 20 March 2002). 12 Part 19 of Schedule 8 contains provisions expressed to be consequent on enactment of the CLA. Clause 90 deals with the application of costs amendments. Clause 91 provides for an apportionment of costs for legal services. The effect of those provisions is to implement the restrictions imposed by s.198D on or after 7 May 2002.