Baggs v University of Sydney Union [2015] NSWSC 601

Supreme Court New South Wales

Medium Neutral Citation: Baggs v University of Sydney Union [2015] NSWSC 601 Hearing dates: 19 May 2015 Date of orders: 19 May 2015 Decision date: 19 May 2015 Jurisdiction: Common Law Before: Wilson J Decision: See paragraph 13 Catchwords: CIVIL LAW – interlocutory orders – application to vacate hearing date – costs – no point of principle Category: Procedural and other rulings Parties: Kate Baggs (Plaintiff) University of Sydney Union (Defendant) Representation: Counsel: Mr M Vanderhout (Plaintiff) Ms L Maker (Defendant) File Number(s): 2011/137856

Ex tempore Judgment 1. The plaintiff in this matter, Kate Baggs, asks by notice of motion to vacate a hearing date which is currently fixed for 12 October 2015. 2. The hearing date was to determine a statement of claim in which the University of Sydney Union is the defendant. The application to vacate the hearing date is not opposed by the defendant who sensibly appreciates the difficulty that the plaintiff currently faces and the obvious impact that her current difficulties will have on the issues to be determined at the hearing of the statement of claim. 3. Before the Court is evidence in the form of an affidavit from Matthew Berenger sworn 7 May of 2015. In that affidavit Mr Berenger sets out the circumstances that currently apply to the plaintiff. 4. The plaintiff is ill, if that is an appropriate description of it. She has a condition which is described as requiring to surgery to her spine, that being a laminectomy and a foraminotomy at the level of C5-C6 of her spine. 5. The plaintiff is under the care of a neurosurgeon, Dr Brennan, from the Royal North Shore Private Hospital and Dr Brennan is supervising and conducting the necessary surgery and will supervise, as I understand it, the plaintiff's recovery from this surgery. 6. It is said the surgery has been necessitated I am advised by injuries occasioned in the incident which is the subject of dispute and plainly there will need to be some resolution of the current treatment because that will be relevant to the issues to be determined by the court. 7. Accordingly, it is appropriate to vacate the hearing date of 12 October 2015 and I make that order. 8. The issue between the parties is the question of costs. The plaintiff contends that costs of the motion should be costs in the cause. The defendant contends that they should be costs thrown away. 9. The plaintiff points to the fact that the plaintiff's inability to prepare for and be at the hearing date that I have just vacated is through no fault of her own and arises as a direct result of her injuries and her critical medical condition. 10. The defendant does not dispute that but points to the fact that it has retained counsel, briefed experts ready for the hearing and it is at least possible that there will be some costs incurred as a result of the vacation of the hearing date. 11. Having considered the argument of both sides, it seems to me appropriate that the costs be ordered as costs in the cause. This is not a motion which has arisen because of any fault or any laxity on the part of the plaintiff. It is a result clearly of a medical situation that, it is contended, arises from the disputed incident. That being the case, I think it is appropriate to order costs in the cause. 12. The defendant has frankly conceded that there may indeed be no direct costs thrown away as a result of the vacation of the current hearing date and that, it seems to me, is a relevant consideration in making the order that I make.