Boothman v George
[2024] WADC 26 (S)
•15 JULY 2024
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: BOOTHMAN -v- GEORGE [2024] WADC 26 (S)
CORAM: PALMER DCJ
HEARD: 22 & 30 MAY 2024
DELIVERED : 15 JULY 2024
FILE NO/S: CIV 3518 of 2020
BETWEEN: RONAN DAVID BOOTHMAN
Plaintiff
AND
CHRISTOPHER MAGER GEORGE
Defendant
Catchwords:
Costs orders following trial - Effect of plaintiff recovering judgment no less favourable than an offer made pursuant to District Court Rules 2005 (WA) rule 42A - Whether facts of the way the litigation was conducted justifies departure from applicable default position
Legislation:
District Court Rules (WA), rule 42A
Result:
Costs orders made
Representation:
Counsel:
| Plaintiff | : | Mr K S Pratt |
| Defendant | : | Ms F A Stanton |
Solicitors:
| Plaintiff | : | Bradley Bayly Legal (Perth) |
| Defendant | : | Clyde & Co (Perth) |
Case(s) referred to in decision(s):
Castro v Hillery [2002] QCA 359; [2003] 1 Qd R 651
Cooper Ellis (by his Next Friend Christopher Graham Ellis) v East Metropolitan Health Service [2018] WADC 36 (S)
Lawrence v Province Leader of the Oceania Province of the Congregation of the Christian Brothers [2020] WADC 27 (S)
Roche v Steven Constantine Varnavides in his capacity as Executor of the Estate of the late Lillian Rose Varnavides [2004] WASC 164
Ross v Suncorp Metway Insurance Ltd [2002] QCA 93
Sulub v Tyres4U Pty Ltd [2018] WADC 139 (S)
PALMER DCJ:
The issue
These reasons concern whether Mr Boothman should be entitled to an award of costs taxed between a law practice and its client because Dr George refused an offer of compromise made pursuant to rule 42A of the District Court Rules2005 (WA) (District Court Rules).
Rule 42A of the District Court Rules provides that if an offer made pursuant to the rule is refused and the plaintiff obtains judgment on terms no less favourable than the offer, the plaintiff's costs are taxed between a law practice and its client for the period after the offer is refused (and on a party/party basis before then) unless the court 'otherwise orders'.
Six months before the trial of these proceedings commenced, Mr Boothman offered to settle his claim pursuant to rule 42A for about $50,000.00 less than the judgment he obtained following trial. On 21 February 2023, he had offered to compromise his claim for $125,000.00. That offer remained open for 28 days.[1] The trial commenced on 2 October 2023. On 30 April 2024, he obtained judgment for $176,644.43.
[1] Order 24A rule 4 of the Rules of the Supreme Court 1971 (WA) (Supreme Court Rules).
The issue to be determined now is whether the court should 'otherwise order' that Mr Boothman's costs be taxed on a party/party basis, even though he obtained judgment on better terms than his offer.
For the reasons that follow, I am satisfied that the court should otherwise order because for the period that the offer remained open, a material part of Mr Boothman's case was unclear.
The circumstances in which a court will 'otherwise order'
In Cooper Ellis (by his Next Friend Christopher Graham Ellis) vEast Metropolitan Health Service (Ellis),[2] Gething DCJ identified the principles which have been established by the authorities dealing with the phrase 'unless the court orders otherwise' as follows:[3]
[2] Cooper Ellis (by his Next Friend Christopher Graham Ellis)vEast Metropolitan Health Service [2018] WADC 36 (S).
[3] Ellis [44].
(a)the purpose of the rule is to encourage the proper compromise of litigation, in the private interests of individual litigants and the public interest;
(b)the discretion to replace the rule is a judicial one, requiring that the private and public purposes of the rule be borne in mind;
(c)the prima facie consequence of non-acceptance will be that the rule will be enforced against the non-accepting party;
(d)in any ordinary case the rule should be applied in its terms;
(e)the rule should only be departed from for proper reasons which, in general, only arise in an exceptional case;
(f)to the extent that a party seeks an exercise of discretion to vary the ordinary operation of the rule, it is for that party to demonstrate that there are adequate reasons to justify the exercise of the discretion;
(g)the aim is to oblige the offeree to give serious thought to the risk involved in non-acceptance;
(h)lying behind the rule is the common knowledge that litigation is inescapably chancy;
(i)the offer cannot be viewed in isolation from the circumstances in which it was made;
(j)the mere fact that it was reasonable for the offeree to take the view that it did in rejecting the offer is not enough to displace the rule;
(k)the offeree is put on notice that unless it accepts the offer there is a significant risk that the order provided for by the rule may follow;
(l)in declining to accept the offer, the offeree undertakes the risk and consequences that naturally flow from that risk;
(m)the general factors which apply in most, if not all, cases such as hardship and difficulty predicting the result of the trial cannot support the exercise of the discretion in favour of the party who rejected the offer; and
(n)the ordinary operation of the rule is not to be displaced just because the case is a difficult one.
(footnotes omitted)
The cases referred to by Gething DCJ considered the phrase 'unless the court orders otherwise' in the context of Order 24A rule 10 of the Supreme Court Rules which he considered was sufficiently similar to make the principles analogous.[4] Gething DCJ's reasoning has been followed by Glancy DCJ (as she then was) in Sulub v Tyres4U Pty Ltd (Sulub)[5] and by Herron DCJ in Lawrence v Province Leader of the Oceania Province of the Congregation of the Christian Brothers (Lawrence).[6] I respectfully agree with Gething DCJ.
[4] Ellis [45].
[5] Sulub v Tyres4U Pty Ltd [2018] WADC 139 (S) (Sulub).
[6] Lawrence v Province Leader of the Oceania Province of the Congregation of the Christian Brothers [2020] WADC 27 (S).
In Ellis Gething DCJ accepted that the case before him was difficult, the result at trial was hard to predict, the defendant believed that it had reasonable prospects of success and it was reasonable for the defendant to take the view that it did at the time it rejected the offer. However, he considered that none of these findings were sufficient to warrant the exercise of the discretion to displace the default position. Rather, he considered that they reflected the ordinary case in the District Court that proceeds to trial.[7]
[7] Ellis [48] - [51].
In Lawrence Herron DCJ accepted that because of the various issues which were ultimately determined after trial, the defendant faced difficulties in assessing the outcome of those issues and the reasonableness of the offer and the risks of the plaintiff receiving a more favourable judgment after trial. He also accepted that it was reasonable for the defendant to take the view that it did in rejecting the offer. He did not consider this enough to displace the ordinary rule. He observed that by declining to accept the offer, the defendant undertook the risk that the plaintiff would receive a more favourable judgment then the offer and the consequences which flowed from that risk.[8]
[8] Lawrence [74].
In Ellis Gething DCJ noted that in that case the defendant had not suggested that the plaintiff's case was unclear at the time the offer was made and he referred[9] to the decision of Ross v Suncorp Metway Insurance Ltd (Ross).[10] In Ross the Queensland Court of Appeal refused[11] an appeal from a trial judge who had refused to order indemnity costs where a settlement offer had been made at the time that the statement of claim was served and the allegations made in the statement of claim provided the only basis upon which the offer could be considered.
[9] Ellis [52] and footnote 25. See also Roche v Steven Constantine Varnavides in his capacity as Executor of the Estate of the late Lillian Rose Varnavides [2004] WASC 164 (S) [26] (Newnes M) (Roche).
[10] Ross v Suncorp Metway Insurance Ltd [2002] QCA 93 [1], [3], [30] (Davies JA, Thomas JA & Douglas J) (Ross).
[11] Ross [28] - [30] (Douglas J), (Thomas JA [1] & Douglas J [17] agreeing).
In Sulub Glancy DCJ was prepared to otherwise order where the defendant had no notice that the plaintiff would call a witness who would corroborate an important aspect of the plaintiff's evidence and the defendant was surprised by the witness’s evidence at trial.[12]
[12] Sulub, [43] - [47].
In Castro v Hillery (Castro)[13] Williams JA (with whom Wilson JA concurred), having reviewed a number of English authorities, concluded[14] that the recipient of an offer must have an informed opportunity to assess the chances of doing better than the offer. That issue must be decided on the material disclosed in the proceedings and must be evaluated in light of the circumstances that existed at the time the offer was made.[15]
[13] Castro v Hillery [2002] QCA 359; [2003] 1 Qd R 651 [72] (Castro).
[14] Castro [72] - [76].
[15] Castro [72].
Whether the court should 'otherwise order' in this case
Dr George submitted that the court should otherwise order because the confused presentation of Mr Boothman's case during the period the offer remained open deprived him of an 'informed opportunity' to assess the chances of doing better than the offer. He also suggested that the situation was similar to that in Sulub.
Dr George contended that there was a lack of clarity regarding the allegation that Mr Boothman made about his back being forcefully twisted. He said that this meant he was denied an informed opportunity to understand the basis upon which Mr Watson and Dr Watts arrived at the conclusions they did.
Dr George said that there was no mention of twisting in the statement of claim, the statement that Mr Boothman began preparing after the incident, or in Dr Silbert's report dated 5 June 2020.
Dr George acknowledged that the report of Dr Watson dated 31 August 2020 recorded that Mr Boothman had told Dr Watson that there had been 'twisting quite vigorously' but said that that account was inconsistent with the other accounts that Mr Boothman gave.
Dr George also acknowledged that Dr Watts recorded a description of a twisting action in his report dated 13 December 2021. It was submitted however, that Dr Watts's report appeared to be describing what Dr Silbert had said in his report. It was said that on its face this appeared to be a mis‑transcription of Mr Boothman's statement in a way that permitted Dr Watts to conclude that Dr George had performed a rolling lumbar manipulation.
Dr George said that Mr Boothman was aware of his understanding of the position because this was disclosed in a letter sent by Mr Boothman's solicitors to Dr George's solicitors. He said that Mr Boothman's solicitors did not seek to correct Dr George's understanding.
Dr George also referred to the fact that Mr Boothman said that his knee dropped for the first time at trial, although he conceded that the suggestion that Mr Boothman's knee dropped was consistent with an allegation of a rotational or twisting force being applied.
Mr Boothman disputed that there was any reason for the court to otherwise order in this case. He submitted that each of the contests regarding the facts and the expert opinion evidence were routine and would have been expected by the defendant.
The trial was conducted on the basis that Mr Boothman was alleging that Dr George forcefully pushed down on Mr Boothman's back and twisted his body.
That this was Mr Boothman's case was made plain in par 5.f of the plaintiff's opening submissions.[16] In response, Dr George submitted that such a description was of a 'rolling lumbar manipulation' which was different to what had been pleaded and that Mr Boothman had been driven to re‑describe what had occurred because Dr Watts had expressed his opinion on the basis of his own (inadmissible) finding of fact. Dr George submitted that the evidence would not support a finding that a rolling lumbar manipulation was performed.[17] In closing, Dr George submitted that Mr Boothman's evidence should be rejected because it was inconsistent with, amongst other things, the statement of claim.[18] He also submitted that Mr Boothman's recollection had been subconsciously influenced by his dealings with Dr Watts.[19]
[16] Plaintiff's Outline of Submissions (Trial Commencing on 2 October 2023) dated 21 August 2023.
[17] Defendant's Outline of Opening Submissions Filed Pursuant to rule 45H dated 7 September 2023, pars 42 ‑ 43.
[18] Defendant's Outline of Closing Submissions dated 22 October 2023 (Defendant's Closing Submissions), par 74.
[19] Defendant's Closing Submissions, pars 75 and 78.
Mr Boothman's offer to settle was made several months before the plaintiff's opening submissions were filed, however.
I accept that at that stage Mr Boothman's case was much less clear. The manner in which he pleaded his case did not mention twisting. Further, as Dr George has submitted, most of the material available to Dr George at that time did not mention twisting. This included a draft witness statement that was discovered.
I also accept that this led Mr Boothman's solicitors to theorise that it was Dr Watts and not Mr Boothman, who had raised the notion of twisting. Such a theory did not seem to take into account Dr Watson's mention of twisting but I accept the evidence given by Dr George's solicitor that he did not perceive Dr Watson's report in this way.[20]
[20] Second Affidavit of Jehan-Philippe Wood sworn 27 May 2024, par 10.
The result of the trial ultimately turned in large part on my acceptance of Mr Boothman's evidence that there had been forceful twisting.
I do not consider that the position in this case is akin to the position in Sulub. It seems to me that there was some indication that Mr Boothman would say that there was forceful twisting, at the least because this was recorded in Dr Watson's report.
During the period for which the offer remained open however, the fact that Mr Boothman's evidence would be that there had been forceful twisting was obscured by the material that made no mention of this and the manner in which his case was pleaded. I accept that this lack of clarity meant that Dr George did not have an informed opportunity to consider the offer made. That this was the case was confirmed by the affidavit evidence filed by Dr George's solicitor.
This differentiates this case from the ordinary case. I consider it is a reason to 'otherwise order'.
Conclusion
I will order that Mr Boothman's costs be assessed on a party/party basis.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
GS
Associate
15 JULY 2024
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