Hawkesbury District Health Service Limited & Anor v Patricia Chaker (No 2) [2011] NSWCA 30

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Hawkesbury District Health Service Limited & Anor v Patricia Chaker (No 2) [2011] NSWCA 30 Hearing dates: On the papers Decision date: 28 February 2011 Before: ALLSOP P, BEAZLEY JA, HOEBEN J Decision: (1) Order 5 of the orders made on 25 November 2010 should be varied as follows: 5. That the respondent pay Dr Tompsett's costs of the appeal except for the costs of and associated with the written submissions and narrative statement filed by Dr Tompsett on 2 November 2009. (2) Order 9 of the orders made on 25 November 2010 should be varied as follows: 9. The Hospital is to pay the respondent's costs of its application for leave to appeal and its appeal against his Honour's orders in respect of its costs. (a) Up to and including 24 August 2009 on the ordinary basis and; (b) From 25 August 2009 on an indemnity basis. (3) UCPR 42.34 is not to apply to the hearing in the Common Law Division. (4) All questions of fact pertaining to liability are open to be determined in the hearing in the Common Law Division. (5) The respondent is to have a Certificate under the Suitors Fund Act 1951 if otherwise qualified. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: COSTS - whether costs should depart from general rule that costs follow the event - successful appellant fails on separable ground of appeal - effect of the abandonment of one ground of appeal - effect of non-compliance with UCPR 51.36 in filing written submissions and narrative statement. Legislation Cited: Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005 Cases Cited: Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 Hawkesbury District Health Service Ltd & Anor v Patricia Chaker [2010] NSWCA 320 Quest Rosehill Pty Ltd v White [2010] NSWSC 1190 at [67] Category: Consequential orders Parties: Hawkesbury District Health Service Limited - First Appellant Elizabeth Tompsett - Second Appellant Patricia Chaker - Respondent Representation: Counsel: Ms J Sandford - Appellants Mr K Connor SC/Ms M Avenell - Respondent Solicitors: TressCox Lawyers - Appellants Lamrocks Solicitors & Attorneys - Respondent File Number(s): 2009/298279 Decision under appeal Date of Decision: 2009-06-10 00:00:00 Before: Delaney DCJ File Number(s): 36/2006