Sandra Battersby v Allan; Darrel Battersby v Allan ; (No. 2) [2018] NSWSC 98

Supreme Court New South Wales

Medium Neutral Citation: Sandra Battersby v Allan; Darrel Battersby v Allan ; (No. 2) [2018] NSWSC 98 Hearing dates: Written submissions Date of orders: 19 February 2018 Decision date: 19 February 2018 Jurisdiction: Common Law Before: Bellew J Decision: (1) The plaintiffs are to pay the costs of the defendant thrown away by reason of the adjournment of the defendant's motion on 23 October 2017.

(2) The parties are to otherwise pay their own costs of the motion. Catchwords: Costs – Whether costs should follow the event – No point of principle Legislation Cited: Civil Procedure Act 2005 (NSW) Evidence Act 1995 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Calderbank v Calderbank [1975] 3 All ER 333 Ohn v Walton (1995) 36 NSWLR 77 Sandra Battersby v Allan; Darrel Battersby v Allan [2017] NSWSC 1724 Category: Costs Parties: Sandra Battersby (Plaintiff) Darrel Battersby (Plaintiff) Rodney Allan (Defendant) Representation: Counsel: P Bates (Plaintiffs) K Burke (Defendant)

Solicitors: Gerard Malouf & Partners (Plaintiffs) HWL Ebsworth (Defendant) File Number(s): 2015/283601; 2015/283627 Publication restriction: Nil

Judgment

Introduction 1. In each of these proceedings the defendant, who is a medical practitioner, filed a notice of motion seeking orders excluding two medical reports served by the plaintiffs. The first report was that of Dr Milder, which the defendant sought to exclude on the basis that Dr Milder lacked the necessary expertise to express the opinions contained in that report. The second was that of Dr Webster, which the defendant sought to exclude on the basis that it had been served outside of the time limits prescribed by the Uniform Civil Procedure Rules 2005 ("the Rules"). 2. The hearing of the motion commenced on 23 October 2017. However shortly after the commencement of the hearing, it became apparent that the evidence filed on behalf of the plaintiffs was deficient, necessitating counsel to seek an adjournment in order to rectify those deficiencies. The hearing of the motion was adjourned until 29 November 2017. 3. On 15 December 2017, I dismissed the defendant's notice of motion: Sandra Battersby v Allan; Darrel Battersby v Allan [2017] NSWSC 1724. At the time of delivering judgment, I ordered that in the absence of agreement, each party should provide short written submissions as to the question of costs. This judgment deals with that issue.