Stewart v Chee

The plaintiff underwent an operation to deal with a foreign mass which had been found on her left kidney. The operation took place at Port Macquarie Private Hospital on 19 November 2013.

During the course of the operation, ligaclips were applied to the right renal artery, it is alleged, and when the operation was concluded those ligaclips were not removed until found at a later time. As a result, the plaintiff has no effective kidney function and must now, it appears, rely on dialysis for the rest of her life. The plaintiff has brought proceedings against the renal surgeon.

Four particulars of negligence are identified in paragraph 13 of the Statement of Claim as follows:

The defence admits negligence in respect of particulars (c) and (d) in these terms:

There are issues identified about the obtaining of dialysis for the plaintiff and whether it is necessary for that dialysis to be on a home-care basis or within a hospital setting. Those issues have been complicated by the age and capacity of her husband to assist in that regard.

It seems fairly clear from the affidavit of Shoshana Jean Radnan sworn 28 February 2018 and from the correspondence annexed to that affidavit that the considerable cost involved in dialysis prompted an application being made by the plaintiff to the defendant for an interim payment under section 82 of the Civil Procedure Act 2005 (NSW).

The defendant moved commendably expeditiously to agree to such an interim payment of $100,000.

It is not in issue now between the parties whether the conditions in s 82 that need to be established have been established. The only issue between the parties concerns the form of the order in relation to the payment of the interim amount.

The plaintiff has proposed the following order:

The defendant has proposed an order in the same terms but with the addition of the words at the end, "for the purpose of dialysis care and treatment".

There has been an exchange of correspondence between the parties since the contention in the form of those orders arose. It is that issue which has come before me now for determination.

The plaintiff points to a number of decisions suggesting that it is not necessary for a plaintiff to show a need for an interim payment and that any orders made do not contain any condition as to the use of the money. Reference has been made in particular to two judgments of Garling J in Sargent v South Western Area Health Service [2010] NSWSC 1506 and Munsie v Munsie [2012] NSWSC 479.

The defendant relies also on those decisions because of remarks that were made about the use of the money. The defendant also relies on other cases which point to the purpose or intention of the plaintiff in the use of the interim payment having been taken into account as a discretionary consideration. The defendant submits that it is a consideration that should be taken into account in determining whether it is just for the payment to be made.

The plaintiff in the recent correspondence has indicated that she does not propose to apply the moneys towards her litigation costs. The defendant submits, however, that the plaintiff does not clearly indicate that the interim payment will in fact be used for the purposes of dialysis care and treatment.

In Sargent, Garling J said:

When considering a similar application his Honour said in Munsie v Munsie at [26] that the authorities on s 82, broadly put, do not limit orders for part payment only to those in which a need has been established. His Honour made reference to his earlier decision in Sargent and to the decision of the Court of appeal in Forster v Hunter New England Area Health Service (2010) 77 NSWLR 495; [2010] NSWCA 106 particularly at [41] in the judgment of Sackville AJA. His Honour then said:

In the present case the plaintiff has in fact demonstrated the need for the interim payment, which is for the carrying out of dialysis, probably likely to be conducted on an out-of-hospital basis. It is apparent that that is an expensive exercise.

I am not satisfied that it is a requirement of s 82 that any condition should be imposed and I am comfortably satisfied on the basis of the authorities that it would not be appropriate to impose any such condition in the circumstances.

There is the further matter of the difficulty of enforcing such an order. It cannot be accepted that a defendant would be entitled constantly to inquire of a plaintiff whether in correspondence, interrogatories or otherwise what use was being made of the money and to require proof in that regard. That appears to me to be another indication that it would be inappropriate to impose the condition. In saying that, I accept entirely that, were a condition to be imposed and the defendant became aware that the funds were being otherwise used, the defendant may have a right to come back to the Court to have some variation of the order.

For the reasons I have given, I do not consider that the defendant's order should be the order that is made. Accordingly, the orders that I make are orders 1 and 2 set out in the consent orders provided by the plaintiff.

The plaintiff seeks costs of the application. The defendant resists an order being made that he pay the costs of the application, and submits that the costs should be costs in the cause. The defendant points to the expeditious way that the application for an interim payment was dealt with. The defendant submits that no motion was filed to bring the matter before me, rather, that there was simply a referral from the Registrar.

However, it seems to me that those matters do not really touch on whether costs should be paid by the defendant in relation to this application. The authorities on the point are tolerably clear that conditions such as the defendant sought are not to be imposed and I consider in the circumstances the defendant should pay the plaintiff's costs of today.