Oyston v St Patrick's College [2011] NSWSC 826

Supreme Court New South Wales

Medium Neutral Citation: Oyston v St Patrick's College [2011] NSWSC 826 Hearing dates: 24 June 2011 Decision date: 04 August 2011 Jurisdiction: Common Law Before: Schmidt J Decision: (i) the defendant is to bear the plaintiff's costs on a party/party basis: (a) up to the time that the offer of 12 May 2010 lapsed; and (b) in respect of her costs thrown away in preparation of submissions on the Limitation Act point. (ii) otherwise, after the offer of 12 May 2010 lapsed, the plaintiff is to bear the defendant's costs on an indemnity basis, other than in respect of 75% of the costs of the principal hearing. The parties are to bear their own costs of this aspect of the hearing. Catchwords: COSTS - departing from the general rule - nature of the discretion to order otherwise - Rule 42.15 of the Uniform Civil Procedure Rules 2005 - whether it was impossible to advise plaintiff about the offer received - not established - no evidence that offer was properly considered or assessed - whether defendant ought to have admitted liability - whether time and money wasted on unjustified defence - whether defendant ought to have abandoned Limitation Act 1969 issue - defendant ought to have admitted liability and conceded Limitation Act point promptly - whether expert evidence ought to have been called - defendant to bear plaintiff's costs on a party/party basis up to the time that the offer lapsed - plaintiff to bear defendant's costs on indemnity basis thereafter other than 75% costs of hearing and costs thrown away in preparation of Limitation Act point

PROCEDURE - judgments and orders - amending, varying and setting aside - future treatment expenses - deferral sought by defendant - no basis for departing from conclusions reached in earlier judgment Legislation Cited: Civil Liability Act 2002 Civil Procedure Act 2005 Limitation Act 1969 Uniform Civil Procedure Rules 2005 Cases Cited: Baillieu Knight Frank (NSW) Pty Ltd v Ted Manny Real Estate Pty Ltd (1992) 30 NSWLR 359 Dalma Formwork (Australia) Pty Ltd v Maricic (No 3) [2008] NSWCA 29 Herning v GWS Machinery Pty Ltd (No 2) [2005] NSWCA 375 Hillier v Sheather (1995) 36 NSWLR 414 Oyston v St Patrick's College [2011] NSWSC 269 Oyston v St Patrick's College (Supreme Court of New South Wales, Johnson J, 21 April 2010, unreported) Penrith City Council v Parks [2004] NSWCA 201 Rosniak v Government Insurance Office (1997) 41 NSWLR 608 South Eastern Sydney Area Health Service v King [2006] NSWCA 2 Category: Costs Parties: Plaintiff - Jazmine Oyston Defendant - St Patrick's College Representation: Counsel: Plaintiff - Mr D Kennedy SC with Mr G Smith Defendant - Mr R Sheldon SC with Mr N Chen Solicitors: Plaintiff - Lough Wells Duncan Defendant - Makinson & d'Apice File Number(s): 2007/265225