Abi-Mosleh & Abi-Mosleh v Fantis (No 2)
[2006] SADC 89
•11 August 2006
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
ABI-MOSLEH & ABI-MOSLEH v FANTIS & ORS (No 2)
[2006] SADC 89
Judgment of His Honour Judge Anderson
11 August 2006
PROCEDURE - COSTS - DEPARTING FROM THE GENERAL RULE - ORDER FOR COSTS ON INDEMNITY BASIS
First plaintiff found to have complied with DCR 6A.02(1) - offers by first plaintiff regarding liability and quantum in accord with DCR 41.01 not accepted - first plaintiff recovered in excess of those offers - no basis for discretion to be exercised other than in accord with DCR 41.04 - costs on solicitor and own client basis awarded to first plaintiff.
Second plaintiff failed to give notice pursuant to DCR 6A.02(1) - significantly lesser claim - no order for costs.
District Court Rules 6A.02, 38, 41.01, 41.04, referred to.
Stewart & Ors v Jacobsen (2000) 209 LSJS 174; Chajka & Chajka v Preston (No 2) [2005] SADC 71; Duncan & Weller Pty Ltd v Mendelson and Others [1989] VR 386, considered.
ABI-MOSLEH & ABI-MOSLEH v FANTIS & ORS (No 2)
[2006] SADC 89
On 29 June 2006, I entered judgment in this matter. I found the Defendants liable for the damages sustained by each Plaintiff. I assessed the first Plaintiff’s damages in the sum of $292,978.00 and those of the second Plaintiff at $8,000.00. After application of a 25% reduction due to the first Plaintiff’s contributory negligence, judgment was entered in the sums of $219,733.50 and $6,000.00 respectively.
I subsequently heard submissions on the question of costs.
As a consequence of offers filed pursuant to DCR 41.01, the first Plaintiff has sought the whole of his costs of action on a solicitor and own client basis. Mr Cogan, who appeared for the Plaintiffs on this application, sought usual party and party costs for the second Plaintiff.
Mr Stratford, of counsel for the Defendants, opposed the orders sought on several bases and proposed, ultimately and for reasons which he developed, that the Plaintiffs should recover 75% of one set of costs on a party and party basis with no order in favour of the Defendants.
I shall consider the position of the first Plaintiff as his case was the nub of the argument and the trial.
Proceedings were issued on 18 August 2003. In paragraphs 8 and 10 of the Statement of Claim, reference was made to the first Plaintiff having two falls on premises owned by the Defendants. By paragraph 17.1(2) thereof, the first Plaintiff pleaded a “closed head injury followed by loss of consciousness” in relation to the first fall. By order of the Master on 1 December 2005, this paragraph of the Statement of Claim was to be deleted by amendment. In fact, no amended pleading in that regard was filed and the amendment was made at the commencement of the trial. However, for reasons which will become obvious, nothing turns on this timing.
The first fall occurred on 9 January 2001. On 6 June 2002, the solicitor for the first Plaintiff wrote to the Defendants at their home address. The relevant parts of that letter are:
Our client sustained injuries on the 9 January 2001 when he tripped over an obstruction in the car park of the premises located at 316-318 South Road, Croydon Park. At the time you were the owner and occupier of this car park.
We have been instructed by our client to pursue a claim for damages at common law in respect of the injuries suffered by him. In accordance with these instructions we give notice of our client’s intention to claim damages against you.
For the purposes of Rule 101.01 of the District Court Rules, we enclose(*) copies of the following documents:
[Enclosed were the report of the consulting engineer subsequently used at trial and 22 medical reports.]
As our client’s condition has not yet stabilised, we are not in a position to formulate the amount of our client’s claim. The claim will be formulated as soon as it can reasonably be done so, and you will be notified accordingly.
Pending this formulation, we ask that you contact any insurer with whom you hold relevant insurance cover, and advise us as to whom we should divert any further correspondence in respect of this matter.
If you have any further queries please do not hesitate to contact the writer.
No reply to this letter was received from either the Defendants or their insurer.
A further letter advising of the prospective proceedings and seeking advice as to the Defendants’ solicitor or insurer was sent on 30 September 2002. It also failed to elicit a reply. Proceedings were subsequently issued.
Mr Stratford submitted that the letter of 6 June 2002 failed to comply with DCR 6A.02 which requires a plaintiff, before commencing an action, to give at least 90 days notice of the proposed claim to the defendants. There is no doubt that the letter of 6 June 2002 was more than 90 days before action and that it was correctly sent to the Defendants.
The objection flows from an interpretation of sub‑rule (2) which is in these terms:
Where the claim is for any unliquidated amount the notice is to state the sum which the plaintiff will accept in satisfaction of such unliquidated claim or why, with brief reasons, such sum cannot be stated.
Mr Stratford submitted that nothing which accompanied the letter of 6 June 2002 provided a justification for not formulating a claim “90 days before proceedings were instituted” (T23). Of course, the precise words he used in that submission ignore the requirement of Rule 6A.02(1) that such a notice go to proposed defendants “at least” 90 days beforehand. Once such a notice is given, it is not necessary to update it or to give it again at any specified time prior to the institution of proceedings.
In my view, it was quite apparent that, in June 2002, formulation of a claim by the first Plaintiff was not then possible.
Whilst the Defendants’ failure to respond in any way to either this letter or the one which followed was criticised by Mr Cogan, I am of the view that, because the letter was written within the umbrella of Rule 6A.02(2), it receives the protection of Rule 6A.07.
Because I am of the view that Rule 6A.02 has been complied with, it is not necessary to consider the application of the principle set down in Stewart & Ors v Jacobsen (2000) 209 LSJS 174 and Chajka & Chajka v Preston (No 2) [2005] SADC 71. In each of those cases a reduction of costs was ordered where no notice of the type required by the Rule was given.
That is not so here and there is no suggestion that, consequent upon the terms of the letter of 6 June 2002, the Defendants suffered any prejudice. Indeed, the only inference from the papers is that they did nothing when they received it and, thus, any prejudice sustained is of their own making.
In the issued proceedings, the first Plaintiff alleged two causes of action resulting from separate falls on 9 January 2001 and 30 January 2001. As I have mentioned, the alleged sequelae from the first alleged a closed head injury followed by a loss of consciousness.
On 29 September 2004, the first Plaintiff provided to the Defendants a claim formulated in the sum of $241,563.64. From that formulation it is obvious that no allegation of brain injury could be attached to the plea of a closed head injury. Had that not been so, then, of course, the formulation would have been for much more.
On 30 March 2005, the first Plaintiff filed at Court two offers to consent to judgment pursuant to DCR 41.01.
The first, entitled an “offer to limit the claim”, indicated that the first Plaintiff would consent to an apportionment of liability in his favour of 60%, together with his costs on the issue of liability.
The second, entitled “offer to consent to judgment”, indicated that the first Plaintiff offered to accept the sum of $120,000.00 in satisfaction of his claim, plus his costs of action as agreed or taxed. Plainly, this referred to party and party costs and was inclusive of interest.
Also on 30 March 2005, on behalf of the first Plaintiff, a Calderbank letter to the Defendants’ solicitor offered to agree quantum in his action in the sum of $240,000.00, together with “costs on quantum as agreed or taxed”. Again, this could only refer to party and party costs and must be inclusive of any award for interest.
None of these offers was accepted and the first Plaintiff exceeded all offers at trial. Thus, his application in the terms I have described.
Mr Stratford was critical of the filed offers on the basis that they did not indicate whether they related to one or both causes of action.
Respectfully, there is no support for this submission. Not only should the Defendants have been inferentially aware, since the formulated claim of September 2004, that this was not a large matter, in monetary terms, of the type usually associated with brain injury cases, but the terms of each offer refer to the “claim in this action”. Acceptance of either of these offers would have foreclosed the issues firstly, of liability and, secondly, of quantum in relation to the first Plaintiff.
In my opinion, there is no basis upon which it may be suggested, if either or both were accepted, that such acceptance had not concluded “all designated causes of action”: Rule 41.01(1).
In addition to my view as to the only reasonable inference to be drawn from the formulated offer of 29 September 2004, the Defendants were not in receipt of any medical or other reports which did other than support such an inference: see DCR 38.
I am quite satisfied that had either offer been accepted, there could be no reasonable doubt about the consequence of acceptance: Duncan & Weller Pty Ltd v Mendelson and Others [1989] VR 386.
Mr Stratford also submitted that even acceptance of the offers would not have completed proceedings because of the claim by the second Plaintiff. When regard is had to the value of this claim and the likely quantum, in reality, nothing could be less so. Either that claim would have been compromised or it would have been removed to a lesser jurisdiction where it would have proceeded as a horse of a different colour.
I am not of the view that the Defendants are entitled to an order for costs in respect of the second fall which was withdrawn at the commencement of the trial. Nothing other than the attack akin to that on the first Plaintiff’s credibility as to the first fall, was called for and the withdrawal was of no announced consequence or prejudice to the Defendants.
Similarly, with their initial briefing of Senior Counsel. That was a matter for them in the context of a Statement of Claim with no supporting medical reports at the outset, or at all. As mentioned, it clearly was not necessary past September 2004.
Mr Stratford has put all of his submissions in the context of the wide general discretion contained within s42 of the District Court Act 1991. It is well accepted that there are no rules as to its exercise in a judicial context.
In my view, the position is quite clear. Well before trial the Defendants had ample opportunity to act so as to bring these proceedings to an end. They chose not to do so and now must face the inevitable consequence preordained in Rule 41.04. There is no basis shown upon which it would be proper to do otherwise. I order that the first Plaintiff have the whole of his costs of action to be taxed, if not agreed, as between solicitor and client.
The second Plaintiff did not provide any notice of her claim to the Defendants in accord with Rule 6A.02(1). In addition, at no time did her solicitor provide a formulated claim on her behalf.
Had the Defendants accepted the offers made by the solicitors for the first Plaintiff, then this matter would not have proceeded in this Court. It is not in dispute that her claim was not sufficiently large to allow for such a course. Thus, any order for costs would either have been subsumed in those of the first Plaintiff, or would be on a significantly lesser scale.
It seems from the Court Record of this action that certain costs orders were made in favour of the Defendants at interlocutory hearings where the Plaintiffs’ solicitor did not attend.
In all of the circumstances the failure to comply with DCR 6A.02(1) and this entitlement of the Defendants is best reflected in there being no order for costs in favour of the second plaintiff and I so order.
The Plaintiffs should now seal the judgment in accordance with the reasons published on 29 June 2006 and these reasons. The whole of the judgment should speak from 29 June 2006. The order for costs should be part of the judgment speaking from that date.
I order that the time within which to lodge any appeal be enlarged so as to run from Friday, 11 August 2006.
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