McColl JA at [1]; Basten JA at [2]; Campbell JA at [17]
Decision:
Appeal dismissed with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:
NEGLIGENCE - road accident cases - causation - where plaintiff disabled by psychological condition after accident - whether trial judge mistaken in finding condition pre-existed accident - whether trial judge mistaken in finding exacerbation of condition was not due to accident - no error demonstrated - no question of principle
COSTS - proceedings brought by tutor of legally incapable person - compromise of proceedings - indemnity costs - offer of compromise not accepted by tutor of incapable person - offers of compromise made to incapable person require the approval of the court in accordance with s 76 Civil Procedure Act 2005 - whether Uniform Civil Procedure Rules concerning offers of compromise and consequential costs orders apply to offers made to persons under legal incapacity - whether settlement subject to approval of the court creates binding agreement - approval provisions have the effect that an otherwise valid agreement does not create an actual compromise of proceedings instanter but does create a binding contract conditional on court approval - where agreement to compromise does not contain express requirement to apply for approval a term to that effect will be implied - UCPR applies with that proviso - normal costs consequences of unsuccessful party rejecting an offer apply
COSTS - proceedings brought by tutor of legally incapable person - compromise of proceedings - whether tutor brought into unacceptable conflict by personal liability for costs if legislation allows indemnity costs order to be made in respect of refusal of reasonable offer to compromise - tutors always at risk of personal liability for costs - risk of indemnity costs changes scope but not character of risk - not sufficient reason to reject correct interpretation of legislation
COSTS - proceedings brought by tutor of legally incapable person - compromise of proceedings - reasonable time - offer of compromise made within two months of hearing date - offer expressed to be open for 21 days - whether reasonable in the circumstances - onus on party rejecting offer to show why time not reasonable - no evidence advanced
COSTS - party under disability appealing by tutor - tutor's liability for costs
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Azar v Kathirgamalingan [2012] NSWCA 429
Case
[2012] NSWCA 429
Decision Date
CaseChat Overview and Summary
The appeal concerned a plaintiff who suffered a psychological condition following a road accident. The defendant argued that the trial judge erred in finding that the plaintiff's condition pre-existed the accident and that its exacerbation was not caused by the accident. The Court of Appeal, comprising McColl, Basten and Campbell JJA, was asked to determine whether the trial judge's findings on causation were mistaken.
The primary legal issues before the Court of Appeal were whether the trial judge had made an error in finding that the plaintiff's psychological condition was not caused or exacerbated by the road accident, and consequently, whether the plaintiff had demonstrated any question of principle in relation to causation. A further significant issue related to costs, specifically whether the Uniform Civil Procedure Rules (UCPR) concerning offers of compromise and consequential costs orders applied to offers made to a legally incapable person represented by a tutor, and whether a settlement subject to court approval created a binding agreement. The court also considered whether a tutor bringing proceedings on behalf of a legally incapable person was placed in unacceptable conflict by the risk of personal liability for costs if legislation allowed for indemnity costs orders.
The Court of Appeal found no error in the trial judge's findings regarding causation. Regarding costs, the court held that offers of compromise made to a legally incapable person require court approval under s 76 of the Civil Procedure Act 2005. While such an agreement does not create an immediate compromise, it forms a binding contract conditional on court approval, and the UCPR applies with this proviso. The court also determined that tutors are always at risk of personal liability for costs, and the risk of indemnity costs, while changing the scope, did not alter the character of this risk. The court found that an offer made within two months of the hearing date, open for 21 days, was reasonable in the circumstances, with the onus on the rejecting party to demonstrate otherwise.
The appeal was dismissed, and the court ordered that the appellant pay the respondent's costs.
Orders
Orders of the court
Appeal dismissed with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]