Hoade by his tutor Hoade v Mid North Coast Local Health District [2017] NSWSC 465

Supreme Court New South Wales

Medium Neutral Citation: Hoade by his tutor Hoade v Mid North Coast Local Health District [2017] NSWSC 465 Hearing dates: 21 April 2017 Date of orders: 21 April 2017 Decision date: 21 April 2017 Jurisdiction: Common Law Before: Schmidt J Decision: Consent orders made in terms of MFI 1.

The defendant to pay the plaintiff's costs of the motion. Catchwords: PROCEDURE - notice of motion - order sought under s 82(1) of the Civil Procedure Act 2005 (NSW) against defendant for interim payment of damages sought to be recovered – consent orders made – costs Legislation Cited: Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Gambro Pty Limited v Fresenius Medical Care Australia Pty Limited [2002] FCA 581 Category: Procedural and other rulings Parties: Reginald William Hoade by his tutor Leonie Diane Hoade (Plaintiff)

Mid North Coast Local Health District (Defendant) Representation: Counsel: Mr P D'Arcy-King (Plaintiff)

Solicitors: Monaco Solicitors (Plaintiff) Ms A Talbot Crown Solicitor's Office (Defendant) File Number(s): 2016/91497 Publication restriction: None

EX TEMPORE Judgment 1. HER HONOUR: In this matter proceedings were brought by Mr Hoade's tutor, his wife Mrs Hoade, in July 2016 at a time when the application which was finally made under s 82(3)(c) of the Civil Procedure Act 2005 (NSW), by motion filed in February 2017, was foreshadowed. The expert report of Dr Tomlinson, of 18 February 2016 was also served in July. Other reports were served before the filing of the motion. 2. The hearing of the motion was listed following initial advice that the orders sought would be opposed by the defendant Health District. The orders sought required the defendant to pay Mr Hoade the sum of $200,000. That attitude was revisited by the defendant in circumstances which appear from an affidavit sworn by its solicitor, Ms Talbot, on 20 April 2017. 3. It appears that after the defendant itself obtained advice from its liability expert on 11 April 2017 advice was given of instructions to consent to the orders sought in the motion. There were further discussions which resulted in consent orders which the Court was asked to make today. The only matter disagreed was as to costs, an order not expressly sought in the motion. 4. There is no issue between the parties as to the Court's discretion as to the question of costs or that under the Uniform Civil Procedure Rules 2005 (NSW) the usual order is that costs follow the event, including in relation to interlocutory applications such as this. 5. For its part, the Health District opposed any costs order being made in favour of Mr Hoade, arguing that there should be a departure from the usual order in circumstances where a compromise had been negotiated. 6. Reliance was placed on a judgment given by Tamberlin J in Gambro Pty Limited v Fresenius Medical Care Australia Pty Limited [2002] FCA 581 where it appears that his Honour reserved the question of costs which arose in that case, pending determination of the proceedings, taking the view that such compromises should be encouraged. 7. That was a judgment given in 2002, prior to the enactment of the Civil Procedure Act in 2005, which imposes positive obligations on parties by s 56 in relation to the facilitation of the just, quick and cheap resolution of the real issues in the proceedings. 8. Plainly, the defendant's final consent to the orders sought adhere to its obligation in that regard. That is, of course, to be encouraged, but it must be borne in mind that is a statutory obligation which falls upon all parties who come before the Court. 9. In the circumstances, I am not persuaded that there should be any departure from the usual order flowing from the defendant's compliance with this statutory obligation. 10. For those reasons, by consent, I make the orders to which the parties have agreed, which appear in MFI 1, together with an order that the defendant pay the plaintiff's costs of the motion.