Burgoyne Real Estate Pty Ltd v Dutt
[2017] VSCA 372
•14 December 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2017 0106
| BURGOYNE REAL ESTATE PTY LTD (ACN 070 951 834) | First Applicant |
| CRESTWAY INVESTMENTS PTY LTD (ACN 077 184 528) | Second Applicant |
| DELMUN INVESTMENTS PTY LTD (ACN 141 842 480) | Third Applicant |
| v | |
| SHEILA WENDY DUTT | Respondent |
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| JUDGES: | BEACH and ASHLEY JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 11 December 2017 |
| DATE OF JUDGMENT: | 14 December 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 372 |
| JUDGMENT APPEALED FROM: | Dutt v Burgoyne Real Estate Pty Ltd & Ors (Unreported, County Court of Victoria, Judge Smith, 7 September 2017) |
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COSTS – Application for leave to appeal order that defendants pay plaintiff’s costs on County Court Scale – Proceeding in County Court – Claim for damages for personal injury – Offer by defendants of $25,000 plus costs and disbursements to settle proceeding – Offer accepted – Dispute as to what costs were payable – Judge asked to adjudicate as to costs, not to decide meaning of offer which had been accepted – Whether the correct question for decision – Whether, if so, r 63A.24 of County Court Civil Procedure Rules2008 engaged – New arguments raised by defendants on application for leave to appeal – Whether, if r 63A.24 engaged, meaning of defendants’ offer, election by defendants for trial by jury, probable reduction of offer by reason of plaintiff’s contributory negligence and late loss by plaintiff of right to recover damages for non-economic loss were irrelevant considerations – Discretion to refuse leave to appeal under s 14C Supreme Court Act1986 – Leave to appeal refused – Supreme Court Act1986 s 14C – County Court Civil Procedure Rules 2008 r 63A.24.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicants | Mr R H Stanley | Norris Coates |
| For the Respondent | Mr A D Clements QC with Ms S Gold | Robinson Gill Lawyers |
BEACH JA
ASHLEY JA:
Sheila Dutt (conveniently, ‘the plaintiff’), a woman now aged 63, was a tenant of a residential premises at Mitcham. Burgoyne Real Estate Pty Ltd (‘Burgoyne’) (‘the first defendant’) was the letting agent. The owners were Crestway Investments Pty Ltd (‘Crestway’) (‘the second defendant’) and Delmun Investments Pty Ltd (‘Delmun’) (‘the third defendant’).
On or about 15 May 2012, the plaintiff slipped on the driveway of the premises and suffered injury.
Chronology
Almost three years after her accident, the plaintiff commenced a proceeding against the defendants in the County Court by generally endorsed writ. Burgoyne was named as first defendant, and Crestway and Delmun as second defendants. The plaintiff’s claim was laid in negligence, and/or breach of agreement. An unspecified breach of the Wrongs Act 1958 (‘the Act’) was also relied upon. Injury was alleged, but not particularised.
Plainly, the writ was issued in haste in order to forestall a limitation of actions problem.
The plaintiff’s proceeding was one to which Part VBA of the Act applied. By s 28LE, the plaintiff was not entitled to recover damages for non-economic loss ‘in respect of an injury’ unless she had suffered significant injury. A ‘significant injury’ is one in which the threshold level of impairment is present.[1]
[1]Section 28LF.
The assessment of degree of impairment must be made by an approved medical practitioner.[2] It is to be assessed in compliance with s 28LH.
[2]Section 28LG.
Subject to presently irrelevant exceptions, an approved medical practitioner who makes an assessment of degree of impairment must provide a certificate of assessment, stating whether the degree of impairment satisfies the threshold level.[3]
[3]Section 28LN.
In the present case, the plaintiff obtained a certificate of assessment, dated 20 July 2015 with respect to a left leg injury. The certifying practitioner was the consultant physician, Dr Peter Blombery. The doctor certified that the degree of impairment satisfied the threshold level.
This certificate was served upon at least one of the defendants. Burgoyne referred a question in relation to the assessment to a medical panel.[4] An issue was raised by later pleadings whether Crestway and Delmun had applied for a determination by a medical panel within the permitted time, and so whether they could claim the benefit of the panel’s determination. Nothing turns upon that controversy for present purposes.
[4]See s 28LWE.
In the event, the panel determined that ‘the degree of whole person impairment resulting from the physical injuries to the claimant alleged in the claim does not satisfy the threshold level’. That determination[5] was binding upon the court in which the plaintiff had brought her proceeding.[6]
[5]Made under s 28LZG.
[6]Section 28LZH(2).
Although Dr Blombery’s certificate and the panel’s determination referred only to the physical injury sustained by the plaintiff, the effect of s 28LE of the Act was to prevent the plaintiff recovering damages for non-economic loss generally. The plaintiff had not yet obtained a certificate of assessment in respect of her alleged psychiatric injury.
The plaintiff filed a statement of claim dated 2 March 2016. The gist of her claim was this: she had been a tenant in the premises from about 20 July 2011. The driveway to the premises went down a slope. Over a period leading up to the date on which she sustained injury, water tended to run down the slope. That was because of a plumbing defect. Notwithstanding that she, the plaintiff, had reported the defect to the agent on more than one occasion, the problem had not been remedied. In the event, whilst walking down the driveway on 15 May 2012, she ‘slipped on the wet and slimy surface of the driveway’. Only after this incident was the defect repaired.
The plaintiff laid her claim in negligence, breach of contract and occupier’s liability as against each of the defendants.
The plaintiff particularised her injuries this way:
(i)left lower extremity, including fractures of the big toe and bone oedema of the cuboid bone complicated by Complex Regional Pain Syndrome, Type 1;
(ii)aggravation of venous incompetence in the left leg;
(iii)pain and dysfunction of the left lower limb;
(iv)consequential psychiatric injury;
(v)pain and suffering.
The plaintiff further pleaded that she had a deemed significant injury and was entitled to recovery of non-economic loss damages as against Crestway and Delmun — but not Burgoyne. This was the issue to which we referred at [9] above.
The day after the writ was filed, Crestway and Delmun — then collectively referred to as ‘the second defendants’ — gave notice that a jury was required. In consequence, the proceeding was to be tried with a jury if the proper jury fees were paid.[7] The defendants were obliged to pay the amount of the proper jury fees within 14 days after completion and signing of a certificate of readiness for trial or the fixing of the trial by order.[8]
[7]County Court Rules of Civil Procedure 2008 r 47.02(1)(b) (‘Rules’).
[8]Rule 47.03(2).
The defendants filed defences, but we need not refer to them, because an amended writ was filed and a statement of claim was delivered in March 2017 pursuant to orders made by a judicial registrar of the County Court.
By the amended documents, Crestway and Delmun became the second and third defendants. The plaintiff further particularised her allegation that she had complained about the state of the driveway before her accident, and she further particularised her complaint that the defendants had breached their common law duty of care, their duty as occupiers, and, in the case of the second and third defendants, their contract with the plaintiff.
Burgoyne filed an amended defence, dated 13 April 2017. For present purposes, it is sufficient to note that Burgoyne admitted becoming aware of water running down the driveway of the premises in late April 2012, admitted that the plaintiff had raised this matter with a Burgoyne representative, stated that it had informed a representative of the owners about the matter and requested that it be dealt with as a matter of urgency. But then Burgoyne denied any breach of duty, tortious or contractual, raised a plea of contributory negligence, and pleaded that the circumstances relied upon by the plaintiff constituted an obvious risk which the plaintiff had voluntarily assumed.[9]
[9]See the Wrongs Act 1958 ss 53-4.
Crestway filed an (amended) defence. Dated 19 May 2017, the document relevantly denied that Crestway had been informed either by the plaintiff or by a representative of Burgoyne that there was a problem with excess water at the premises, and stated that it was not otherwise aware of any such problem. It further pleaded that new drains were installed at the premises after May 2012 to disperse rain water, but pleaded that this was not done to repair a defect. Breaches of duty and contract were denied, and contributory negligence was pleaded.
Next, slightly out of chronological sequence, the plaintiff obtained a further certificate of assessment. Dated 12 May 2017, the author of the certificate was Associate Professor Paoletti. This certificate was directed to the psychiatric injury particularised by the plaintiff. Associate Professor Paoletti certified that he was satisfied that ‘the degree of impairment resulting from this person’s psychiatric injury and symptoms (which has not arisen as a consequence of, or secondary to, a physical injury) satisfies the threshold level’.
The injury was described as ‘anxiety, depression and chronic pain, following a fall on 15 May 2012’.
The author’s reference to there being a psychiatric injury which was not a consequence of or secondary to a physical injury was relevant because of s 28LJ of the Act.
The situation then was that the plaintiff once again became entitled to recover damages for non-economic loss; and as well, damages for economic loss.
Each of the defendants referred the subject matter of Associate Professor Paoletti’s certificate for determination by a medical panel. The panel’s certificate of determination dated 21 July 2017 shows that the referrals were made by Burgoyne on 30 May 2017 and by Crestway and Delmun on 27 June 2017.
The panel determined that the degree of psychiatric impairment sustained by the plaintiff did not satisfy the threshold level. The consequence was that the plaintiff once again became unable to recover damages for non-economic loss. Depending upon precisely when the panel’s determination became known to the plaintiff, she learned of that situation about five weeks before the trial date.
It appears that the trial had been listed for hearing on 24 May 2017. But on 9 March 2017, orders were made vacating that date and refixing the matter for trial on 1 September 2017 — as a jury trial with an estimated duration of five to seven days.
The orders made on 9 March also dealt with payment of jury fees. It was ordered that the second defendant pay the jury fees by 4.00pm on 11 August 2017; but that, if there was default in such payment, any other party might pay the fees within a further 14 days. If the fee was not paid, the trial would proceed as a cause.
The second defendant did not pay the jury fees in accordance with the order to which we have just referred. No other party paid the fees within 14 days thereafter. Thus, from 4.00pm on Friday 25 August 2017, the matter was to proceed as a cause.
A mediation was held on Monday 28 August 2017. It seems clear that counsel were briefed. The matter did not resolve.
By email sent to the plaintiff’s solicitors, an offer was made by the defendants. It was said to be in the Calderbank form.[10]
[10]Calderbank v Calderbank [1975] 3 All ER 333; see Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority [No 2] (2005) 13 VR 435 (‘Hazeldene’).
The offer was said to be open for acceptance until 4.00pm on 31 August 2017, that being the afternoon preceding the date fixed for trial.
The offer was expressed as follows:
The offer is that the Defendants will pay to the Plaintiff the sum of $25,000.00 plus costs and disbursements in full and final resolution of the above proceeding. It is a further term of this offer that a release giving effect to the terms of settlement is executed by your client.
The email further stated that:
The principle [sic] reasons that it would be unreasonable for your client to reject this offer are set out below:-
1.The Plaintiff has failed to satisfy the requirements of the Wrongs Act and is bound by the findings of the medical panels.
2.The Plaintiff has not received medical treatment for the injuries the subject of this claim;
3.There can be no claim for economic loss in circumstances where there is no incapacity for employment;
4.The presence of water on a driveway is not an unusual hazard. The Plaintiff as tenant had the legal obligation to maintain the driveway.
The Plaintiff has sworn Answers to Interrogatories that prior to the date of incident, she never once cleaned, swept or removed water from the driveway. The Plaintiff has failed to take reasonable care for her own safety.
On 29 August 2017, at 2.59pm, the plaintiff’s solicitors made an offer of settlement. It did not refer to the defendants’ offer, which had been made a few hours earlier. It was in the form of a Calderbank offer. The offer, made by letter attached to an email, stated that —
The Plaintiff is willing to resolve her claim on the basis of payment of the sum of $50,000 damages plus costs on County Court Scale, and Counsel fees agreed for mediation at $2,500 and for hearing $4,800.
The letter gave reasons why it would be unreasonable for the defendants to reject the offer. They included:
1.The Plaintiff at the time of serving proceedings had reasonable grounds to proceed in the County Court, as she had obtained a Wrongs Act certificate;
On 31 August 2017, a few minutes before 4.00pm, the plaintiff’s solicitors emailed the solicitor for the defendants. Reference was made to the defendants’ offer of 29 August, and continued:
I confirm that Plaintiff accepts the said offer.
What happened on 1 September 2017
When the proceeding was called on before a County Court judge the next morning, it was common ground that the matter had settled. But his Honour was asked, anomalously, to adjudicate on the question of costs. Resolution of that question was treated as turning upon the application of r 63A.24 of the Rules, which says this:
(1)Where in a proceeding for debt or damages the plaintiff recovers by judgment or otherwise an amount (exclusive of costs) not exceeding one‑half of the amount of the jurisdictional limit of the Magistrates’ Court in a civil proceeding (at the time the proceeding commenced), the plaintiff shall, unless the Court otherwise orders, be entitled only to the costs to which the plaintiff would have been entitled if the plaintiff had brought the proceeding in the Magistrates’ Court less an amount equal to the additional costs properly incurred by the defendant by reason of the proceeding having been brought in the County Court instead of the Magistrates’ Court, but shall not be required to pay to the defendant any amount by which the additional costs exceed the costs payable to the plaintiff.
Counsel for the defendants submitted that there was no reason for the judge to otherwise order.
Counsel for the plaintiff submitted that it was up to his client to show why the ordinary consequences should not ensue. He argued that the claim involved some complexity. There were factual complexities, and issues raised by the defendants as to breach of duty, contributory negligence and volenti. He drew attention, also, to the sequence of events, in particular the dates of the panel determinations. He relied upon the fact that the second and third defendants (then, collectively, described as ‘the second defendants’) had called for a jury. Only a week before trial had the non-payment of jury fees meant that the matter would proceed as a cause. As a jury matter, counsel submitted, the matter could not have gone back to the Magistrates’ Court. Again, counsel submitted that it was relevant to take into account the fact that contributory negligence was a live issue; and he argued that the real value of the claim needed to take account of there being a potentially significant reduction for contributory negligence.
As to injury, counsel submitted that there was complexity because the plaintiff was alleging that she was suffering from a complex regional pain syndrome, a fertile area for competing views.
Counsel also referred to the defendants’ offer. He submitted that it ought be understood as an offer to pay costs on the County Court Scale. If the defendants had been intending to make an offer on some different basis, then it ought to have been clearly stated.
It was submitted for the defendants, in reply, that their offer to pay costs should be understood as an offer to pay costs in accordance with the Rules. That was not an offer to pay costs on the County Court Scale. The offer by the plaintiff’s solicitors on 29 August 2017, referring as it did to payment of costs on the County Court Scale, was said to be a recognition of the plaintiff’s difficulty with respect to costs. That was so even though an award of $50,000 would carry County Court Scale costs. [11]
[11]As defendants’ counsel appeared to erroneously concede. The amount recovered must exceed half the jurisdictional limit of the Magistrates’ Court in a civil proceeding.
Defendants’ counsel further submitted that there was no complexity to the proceeding. It was factually and legally simple.
The judge was evidently concerned about what he described as ‘the contractual side of things’. He appears to have been concerned as to what the meaning of the defendants’ costs offer was. The response of defendants’ counsel was this: if there was an ambiguity,
then that part of the offer is severed and this being a matter for adjudication by Your Honour just in terms of the application of the Rules.
The judge’s reasons
The judge noted the form of the offer made by the defendants. He recorded that he had been advised by the parties that the proceeding had settled when the plaintiff accepted the defendants’ offer, but that ‘there remained a dispute as to the orders sought in respect of costs which the parties required [him] to determine’.
His Honour recorded the competing orders sought by the parties.
He observed that ‘[t]he question of which scale of costs are applicable in any matter involves the exercise of a discretion by the Court’.[12]
[12]Reasons [12].
He noted that the second defendant had sought trial by jury and that there was no provision for jury trial in the Magistrates’ Court.
He made a finding, as we apprehend it, that the claim involved some complexity concerning the liability of any of the defendants, the extent of the plaintiff’s injuries, and whether she had suffered loss of earning capacity.[13]
[13]Ibid [13].
As to the reasonableness of the plaintiff bringing her proceeding in the County Court, the judge noted that the matter had been commenced at a time when the plaintiff was in possession of a certificate of assessment the effect of which would have been to permit her to recover damages for non-economic loss.
His Honour noted that the defendants had not challenged a submission that, as at the date when the proceeding was commenced, it was reasonable for the plaintiff to bring her proceeding in the County Court. For that reason, his Honour accepted that it had been reasonable for the plaintiff to initiate the proceeding in the County Court.[14]
[14]Ibid [15].
His Honour noted that a medical panel, on two occasions, had determined that the plaintiff’s injuries were less than the threshold level. He said that:
It followed that, from November 2015, the plaintiff was deemed only able to claim damages in respect of pecuniary loss but not for pain and suffering.[15]
[15]Ibid [17].
His Honour addressed the election of the second defendant to have trial by jury. In that connection, his Honour said this:
Unless the Jury notice filed by the second defendant was withdrawn by it, or some application was made by another party that the trial be heard by a Judge alone … I do not consider that any of the parties could have applied to have the proceeding transferred to the Magistrates’ Court.[16]
[16]Ibid [18].
Then the judge addressed the question whether regard should be had to the prospect of a finding of contributory negligence. He said, with respect to the decision of the ACT Supreme Court in Symes v The Commonwealth,[17] that it was not
binding, but was logical and should be followed.[18] He then stated that the offer of $25,000 probably reflected a discount from some larger sum to allow for the plaintiff’s contributory negligence, but that he was unable to estimate the quantum of such discount. It would be ‘mere speculation’, his Honour said, to estimate the extent of any discount.[19]
[17](1987) 89 FLR 356 (‘Symes’).
[18]Reasons [21].
[19]Ibid [24].
Then his Honour addressed what he described as ‘interpretation of the “plus costs” offer’. He noted that the parties had made competing submissions as to what was meant by the defendants’ offer. He declined to infer that the offer communicated by the plaintiff’s solicitors on the afternoon of 29 August 2017 — which he described as a ‘counter offer’ —
was so worded because the plaintiff’s solicitors were aware that the defendants’ offer involved only costs on the Magistrates’ Court Scale.[20]
[20]Ibid [29].
Then his Honour stated that he considered each of the matters to which he had referred were matters that he should properly take into account in exercising the discretion of the Court provided for by r 63A.24. Taking those circumstances into account, he said that:
I consider it to be fair that the defendants pay the costs of the plaintiff determined in accordance with the County Court Scale on a standard basis. [21]
[21]Ibid [31].
His Honour then went on to address the question whether the defendants’ offer had been expressed with clarity, a consideration which his Honour imported from Hazeldene.[22] It led him to saying that:
… a court, in considering the potentially punitive costs order sought now by the defendants, would take account of the lack of clarity in the wording of their offer. If the defendants’ offer was only to include costs on the Magistrates’ Court Scale it could easily have said so but did not.[23]
[22](2005) 13 VR 435, 442 [25].
[23]Reasons [35].
Finally, his Honour stated that he took into account that the defendants had failed to demonstrate how the matter could have been transferred to the Magistrates’ Court, given the second defendant’s election to have the matter tried by a jury.
In the event, the judge ordered that the defendants pay the plaintiff’s costs on the County Court Scale on the standard basis, and he certified for counsel’s fee on brief and for a special conference.
We should note two other features of the judge’s order. First, his Honour directed that r 63A.24 of the Rules should not apply. Second, he ordered that the proceeding be otherwise dismissed.
Proposed grounds of appeal
The defendants seek leave to appeal; and that the appeal be allowed. They seek an order for costs, essentially in the form in which it was sought before the County Court judge. They rely upon these proposed grounds of appeal:
(1)The trial judge erred by failing to exercise his discretion not to impose the costs penalty provided for by R 63A.24 of the County Court Civil Procedure Rules 2008 with proper regard to the principles.
(2)The trial judge erred by allowing extraneous and/or irrelevant matters to guide or affect the exercise of the said discretion.
Defendants’ submissions
The defendants’ written and oral submissions, in which we include counsel’s responses to questions from the bench, were to this effect:
(1) It would have been open to the plaintiff to sue on the settlement agreement, and to have submitted that the defendants’ offer was to pay costs on the County Court scale. But the plaintiff had chosen to pursue the course of inviting the judge to exercise his general power to award costs. The plaintiff had ‘petitioned' the judge to exercise that jurisdiction.
(2) The defendants’ offer might have meant that the plaintiff (this assumed the applicability of r 63A.24) would in the end recover no costs.[24] But it was not thereby misleading or ambiguous. The plaintiff had legal advisers. It was not for the defendants to explain the ‘true ramifications’ of their offer. There was no fault on their part in making the offer which they did.
[24]Evidently, that was the defendants’ intent.
(3)Whilst r 63A.24 conferred a discretion on the judge to ‘otherwise order’ and whilst a ruling based on a judge’s discretion ordinarily requires error to be demonstrated, yet, relevant to proposed ground 1, the judge erred by failing to have regard to established legal principle. The principle had been stated by Menhennitt J, for the Full Court, in O’Doherty v McMahon.[25] The gist of what his Honour there said was that the discretion to otherwise order would only be exercised where the case had about it some special characteristic justifying the ordering of greater costs, some special circumstances associated with the case; and that what amount the plaintiff might reasonably have expected to recover would never provide a justification for a judge ‘ordering otherwise’.
[25][1971] VR 625 (‘O’Doherty’).
(4) Further as to proposed ground 1, the judge ‘did not advance any principle as a basis for the exercise of his discretion. He made no observation as to the object of the Rule, the general nature of the Rule or the need for special circumstances to be identified’. Thus, there could be ‘no confidence that the trial judge exercised his discretion judicially’.
(5) With respect to ground 2, the judge considered four matters that were either extraneous or irrelevant to the exercise of his discretion — that is, (a) making allowance for contributory negligence, (b) the second defendant’s election for trial by jury, (c) the interpretation of the ‘plus costs’ offer, and (d), the reasonableness of the plaintiff commencing her proceeding in the County Court.
(6) As to allowance for a contributory negligence discount, nothing about the offer or the evidence before the judge permitted his Honour to conclude that it represented a ‘probable’ reduction for contributory negligence. But even if allowance for contributory negligence could be assumed, the decision of the ACT Supreme Court in Symes,[26] upon which the plaintiff relied, was incompatible the operation of r 63A.24.
[26](1987) 89 FLR 356.
(7) With respect to the second defendant’s election for trial by jury, the judge had reversed the burden of demonstrating that the proceeding could have been transferred to the Magistrates’ Court. It was for the plaintiff to demonstrate that the judge should ‘otherwise order’. In any event, it was not to the point that no application had been made to transfer the matter to the Magistrates’ Court. Amanatidis v Darmos [No 2][27] was relied upon in that connection.
[27][2011] VSC 216 [42].
(8) With respect to interpretation of the ‘plus costs’ offer, there was no evidence that the offer ‘lacked clarity’. It was ‘conceivable that the [plaintiff] and/or her solicitors were aware that the offer was subject to the provisions of the relevant rule’. Further, ‘The fact that the [plaintiff] specifically did not pursue a contractual claim alleging an alternate offer and acceptance casts further doubt on the trial judge’s conclusion’.
(9) Finally, with respect to the reasonableness of the plaintiff commencing her proceeding in the County Court, the judge’s analysis was informed by findings which were unsupported by evidence.
(10) Although the defendants’ submissions in this Court with respect to the four matters just mentioned were different to the submissions advanced below, and even if the present submissions were considered by the Court to raise new matters, the Court should nonetheless intervene so as to correct mistakes made by the judge. The issues raised would be relevant to future cases. There was a real public interest in them being correctly decided.
(11) The overarching purpose stated by s 7(1) of the Civil Procedure Act2010 would be adhered to if a party was dissuaded, by a costs penalty, from commencing a proceeding in an inappropriate court — here, the County Court.
Plaintiff’s submissions
The gist of the written and oral submissions for the plaintiff was that:
(1) Leave to appeal should be refused because the appeal had no real prospect of success; or because, although it had a real prospect of success, the Court should exercise its discretion to nonetheless refuse a grant of leave to appeal. But if leave to appeal was granted, then the appeal should be dismissed.
(2) The decision below involved an exercise of judicial discretion. It attracted the principles laid down in House v The King.[28] Moreover, this was a discretionary decision with respect to costs, where an appellate court will be even more reluctant to interfere.
[28](1936) 55 CLR 499, 504–5.
(3) With respect to ground 1, whilst the judge had not expressly stated in his reasons that he needed to be satisfied of special circumstances before making an order otherwise under r 63A.24, it should be inferred that his Honour took that approach. The oral submissions made to his Honour had framed the need for special circumstances to be demonstrated, and his Honour’s analysis of the case showed that he had considered whether special circumstances had been demonstrated.
(4) With respect to the second ground of appeal, what will constitute special circumstances depends upon the facts of the particular case. It could not be said that the matters considered by his Honour were extraneous or irrelevant. The landscape has changed since O’Doherty was decided. There are now, for instance, Part VBA of the Wrongs Act1958 and case transfer mechanisms under the Courts (Case Transfer) Act1991.
(5) As to the issue of contributory negligence, the judge’s conclusion that it was probable that the defendants’ offer reflected a discount of some larger sum to allow for contributory negligence was plainly open. Moreover, nothing in the wording of the rule or in cases considering the rule precluded the judge from having regard to the defence of contributory negligence.
(6) With respect to the election by the second defendant to seek trial by jury, the decision to seek such a trial, knowing that it would not be available if the proceeding was to be transferred to the Magistrates’ Court, was a matter that the judge might properly have considered.
(7) The judge’s finding that there was a lack of clarity in the defendants’ offer was not simply open, it was inevitable. The problem could readily have been avoided had the defendants made an offer which was free of ambiguity. This was the single most compelling reason why the Court should exercise its discretion to refuse leave to appeal. The form of the defendants’ offer had given rise to the whole problem.
(8) It was not irrelevant for the judge to consider whether the plaintiff had acted reasonably in commencing her proceeding in the County Court. The decision of the Full Court in O’Doherty was distinguishable. There, the plaintiff had relied only upon the reasonableness of commencing his proceeding in the County Court. Further, in the present case, the defendants’ complaint was really that there was no evidence to support the judge’s finding that the potential quantum of the plaintiff’s claim, at the time when the proceeding was commenced, exceed the threshold issue. In fact, only at a very late stage in the proceeding was it finally determined that the plaintiff could not proceed with a claim for general damages.
(9) The fact and timing of the medical panel determination were circumstances particular to the case which the trial judge was entitled to take into account as informing the exercise of his discretion.
(10) The judge was correct to make the finding which he did as to the complexity of the proceeding. The pleadings showed that the case was unusually complex for a slipping case. There were multiple defendants, a defence of voluntary assumption of risk (as modified by ss 53 and 54 of the Act), a dispute whether the medical panel opinion of 29 November 2015 was binding upon the second and third defendants, and an assertion by the defendants that as tenant of the premises the plaintiff had the legal obligation to maintain the driveway. In the circumstances, the judge had appropriately concluded that the case had some complexity concerning the liability of the defendants.
Analysis
‘The Court of Appeal may grant an application for leave to appeal [under s 14A of the Supreme Court Act1986][29] only if it is satisfied that the appeal has a real prospect of success.’[30] Two points should be made. First, the phrase ‘a real prospect of success’ draws a distinction between an appeal which has a real prospect of success as opposed to one in which the prospect is merely ‘fanciful’.[31] Second, the Court retains a discretion whether to grant an application for leave to appeal despite being satisfied that the appeal has a real prospect of success.[32]
[29]Which relates to civil appeals.
[30]Supreme Court Act 1986 s 14C.
[31]Kennedy v Shire of Campaspe [2015] VSCA 47 [12] (‘Kennedy’).
[32]Ibid [5]; and see Northern Health v Kuipers [2015] VSCA 172 [11].
The circumstances in which the Court might exercise its discretion to refuse leave have not been illuminated by instances in which leave has been refused on that basis; although, at least by analogy, 24 Hour Fitness Pty Ltd v W & B Investment Group Pty Ltd[33] suggests that one such circumstance is where the proposed appeal is from an order for costs at first instance.
[33][2015] VSCA 216 (‘24 Hour Fitness’).
If the entire focus, in considering whether the defendants should have leave to appeal, was upon the judge’s reasons and the proposed grounds of appeal as developed in the defendants’ written case, then, as our reasons hereafter reveal, a basis for grant of leave to appeal would be disclosed — and, arguably, a basis for allowing the appeal. That is despite oft-repeated reluctance to grant leave to appeal against an order made in the exercise of a judge’s discretion as to costs.[34] It is also so although, re-exercising the discretion vested in the judge, we would make the same order as did his Honour.
[34]See, for example, 24 Hour Fitness [2015] VSCA 216 [53].
But the question whether leave to appeal should be granted does not rest only upon the judge’s reasons and the proposed grounds of appeal so developed. There are other relevant circumstances which, in our opinion, whether taken alone or taken together with weaknesses in the applicant’s case, require that leave to appeal be refused. Because it cannot be said that leave to appeal should be refused by focusing solely upon the proposed grounds as developed by the defendants, it follows that the refusal involves the exercise of the residual discretion to which we have referred.
The following considerations are in point.[35]
[35]In what follows, we are somewhat critical of counsel below. They were not counsel in this Court.
First, without any explanation as to why it might be the correct course, the judge was asked by the parties to undertake what we consider to have been a wrong task. Indeed, and contrary to the defendants’ submissions in this Court, it was the defendants’ counsel who asked his Honour to do so, handing up proposed minutes of orders, and speaking to them.
The defendants’ offer of 29 August 2017 included an offer as to costs. The plaintiff accepted the defendants’ offer on 31 August. On the face of it, there was thereby constituted a fresh cause of action superseding the cause of action upon which the plaintiff had sued. Speaking generally, the effect of such a supervening cause of action is to preclude the parties from proceeding further with the original action.
Often, in practice, parties agree upon a settlement amount, that the defendant should pay costs as determined by the court, and that otherwise the proceeding be dismissed. There commonly follows argument before a judge whether, for instance, a certificate for two counsel ought be granted. There is no doubt that a judge is properly seized of the costs issue in such circumstances. But, except if the apparently entire settlement agreement in the present case was cut into parts, that was not this case, although the judge seems to have been led — see paragraph 4 of his orders — into treating it that way.
Sometimes parties agree that a settlement between them, including as to costs, be the subject of consent orders. The settlement agreement specifies the basis upon which costs are to be paid. Orders to that effect are made. But that was not this case. It was not the case even if, after the agreement had been judicially interpreted, it had then been necessary for the plaintiff to seek an order for costs, consistent with that interpretation, in order to provide for taxation in the absence of agreement as to costs.
Again, parties might reach a secondary agreement, a settlement having been reached between them containing provision for costs, and there being dispute as to the meaning of the costs provision, that the dispute should be resolved not as a matter of interpretation but by the court assuming a general jurisdiction as to costs. We were pressed for the defendants to conclude that this is what happened here. We are not persuaded that this was so. The whole argument below, as will be seen, was too unfocused and contradictory as to allow any such inference to be safely drawn.
In the event, the parties having entered into an agreement which superseded the plaintiff’s original cause of action, and in the absence of further agreement that the costs issue be decided by the judge exercising his costs discretion generally, the proper course was for the plaintiff either to sue on the agreement by a separate proceeding, or to amend her statement of claim to allege the agreement and seek judgment in accordance with it.[36] In either event, it would have been open to the plaintiff and the defendants alike to make submissions as to what their agreement as to costs meant. The resolution by the judge of any dispute as to meaning would not have involved the exercise of a discretion with respect to a costs order, but the interpretation of an agreement.
[36]See Seachange Management Pty Ltd v Pital Business Pty Ltd (2009) 23 VR 396, 405–6 [33]–[35], 408 [40].
It is conceivable that a judge might have concluded that, in truth, there was no agreement between the parties as to what costs were payable. Any such determination, again, would not have involved the exercise of a costs discretion.
Again, the plaintiff, perhaps aware that there was a disagreement as to what costs were payable, and wishing to argue that there was, in truth, no agreement, might have decided to proceed with her action. In such circumstances, the defendants could have amended their defence to set up the agreement in bar. The judge’s determination of such a plea would have involved his deciding whether there was an agreement as to costs, and that would have involved his Honour saying what any such agreement was. Again, no question of the exercise of the costs discretion would have arisen.
But, as we have said, what the parties did was to ask the judge to adjudicate generally upon the costs question, as if the defendants had not made an offer inclusive of costs which the plaintiff had accepted, their agreement to be formalised by a release.
By their present application, the defendants, being dissatisfied by the judge’s resolution of a question which his Honour should not have been asked to answer, asked this Court to decide their application founded upon the same false assumption. We consider that the Court should not lend itself to an exercise of that kind.
Second, the parties adopted the position below that r 63A.24 of the Rules was in point. Again, it was counsel for the defendants who commenced his submissions from that position.
There was no analysis at all, by either party, of the question whether the rule had any application in the circumstances of this matter. Nor were any submissions advanced for the defendants in that connection when this Court raised the matter.
It is far from clear that the rule does have application in the particular circumstances. Evidently, the plaintiff did not recover the sum of $25,000 (exclusive of costs) by judgment. The question is whether the plaintiff recovered that sum ‘otherwise’. This raises the further question whether any settlement, and more particularly this settlement, is recovery of an amount ‘otherwise’. The following matters are pertinent to the answer to those questions:
(1) What is now r 63A.24 has a relatively short history in the rules of the County Court. It did not exist in any form in the 1928 rules of the Court.[37] Nor did it exist at the time when those rules were successively amended up until July 1953. There was simply a general discretion as to costs. It may confidently be assumed that this was the situation going back to the earliest version of the rules.
[37]Known as County Court Act 1928, Rules of Court.
(2) The first recognisable predecessor of the present rule was contained in the Rules of the County Court of the State of Victoria 1964. Order 51, r 2 relevantly provided that:
If in any action or matter (including any jury action) the plaintiff by judgment or otherwise recovers a sum (exclusive of costs) not exceeding one half of that which could have been recovered in a Court of Petty Sessions, he shall be entitled to no more costs than he would have been entitled to had he brought his proceeding in a Court of Petty Sessions, unless the Court or the Judge otherwise orders …
It will be observed that in this rule there was no counterpart of the offsetting provision, in favour of a defendant, which is present in r 63A.24.
(3) In Practice of the County Court of Victoria,[38] it was observed, in 1965, that the rule as thus introduced was ‘now in similar terms to the comparable Supreme Court rule’. That was a reference to O 65, r 12 of the Supreme Court rules then in place.
[38]Bourke, Neesham and Nikakis (Butterworths, 1965).
(4) The rule considered by the Full Court in O’Doherty[39] was in the form to which we have referred above, although a reference to a Court of Petty Sessions was, by then, deemed to be a reference to a Magistrates’ Court.
[39](1971) VR 625.
(5) Rule 63A.24 in in its present form in the current County Court Civil Procedure Rules2008 was in the same form in the County Court Rules of Procedure in Civil Proceedings 1989[40] and in the County Court Rules of Procedure in Civil Proceedings1999.[41] It applies to a proceeding for debt or damages. There is now the offsetting provision which assists a defendant. Reference remains to recovery ‘by judgment or otherwise’. This may be contrasted with the present r 63A.25, which provides that r 63A.24 shall apply, with any necessary modification
[40]See SR 49/1989.
[41]See SR 20/1999.
(a)where the plaintiff recovers judgment other than for a debt or damages; and
(b)any amount in dispute in the proceeding or the value of the property to which the judgment relates does not exceed one-half of the amount or value to which the jurisdiction of the Magistrates’ Court in a civil proceeding (at the time the proceeding commenced).
That is, in the case of a proceeding other than for debt or damages, the rule applies to recovery by judgment, but not, judgment or otherwise.
(6) There is no decision relating to O 51, r 2 of the 1964 rules, or r 63A.24, of which we are aware which casts light on the meaning of the words ‘or otherwise’. It is true that those words are ordinary English words, but they are found in the context of rules of court which have an extensive history, though not in the County Court. So we turn to other, possibly pertinent, provisions.
(7) The RULES for Regulating the Pleading and Practice, and establishing the Amount of Fees, Costs, and Charges, to be paid in the Supreme Court of the Colony of Victoria 1854, provided by r 19:
That in all actions on contract other than cases wherein, by reason of the nature of the action no suit in the County Court can by law be maintained, where the sum recovered or paid into court and accepted by the plaintiff in satisfaction of his demand, or agreed to be paid on the settlement of the action, shall not exceed £50 (without costs), the plaintiff’s costs as against the defendant shall be taxed according to the lower scale of allowances in the Schedule of Costs hereunto annexed: Provided that if the Judge shall certify on the roll that the cause was proper to be tried before a Judge of the Supreme Court of the Colony, and not before a Judge of an inferior Court, the costs shall be taxed on the higher scale.
So far as we have been able to determine, that rule is the sole occasion, at least in Victoria, where reference has been made to the settlement of a proceeding in a provision akin to that presently under consideration.
(8) The Rules of the Supreme Court 1884 effected a change. Rule 12 provided that:
In actions founded on contract in which the plaintiff recovers, by judgment or otherwise, a sum (exclusive of costs) not exceeding £50 he shall be entitled to no more costs than he would have been entitled to had he brought his action in the County Court, unless the Court or a Judge otherwise orders.
It might be argued that the substitution of the words ‘or otherwise’ for earlier reference to acceptance of money paid into court, and to an amount agreed to be paid on the settlement of an action, was intended as an omnibus description of circumstances which were intended to be encompassed, circumstances which had previously been discretely described.
(9) By the time of the 1957 Rules of the Supreme Court, the reference in O 65 r 12 to ‘contract’ had been expanded. There was still reference to recovery ‘by judgment or otherwise’. But the provision was unlike O 51, r 2 of the County Court rules as considered in O’Doherty,[42] because it now provided for a costs offset.
[42][1971] VR 625.
(10) Order 65 r 12 was, in time, repealed. Its modern descendant, now recognising the fact that there is jurisdiction unlimited as to amount in civil proceedings in the County Court, is found in r 63.24(1) and (2). Each of those sub-rules refers to recovery of an amount ‘by judgment or otherwise’. It was not always so. In 1993, what is now r 63.24(1) was amended so as to use the formula ‘recovers by judgment or by the acceptance in accordance with r 26.03(4) of an offer of compromise an amount (exclusive of costs) not exceeding one half of the amount to which the jurisdiction of the County Court is limited’.[43]
[43]The jurisdiction was monetarily limited in all civil proceedings until 1990. Then it became unlimited in respect of claims in which damages were sought for personal injuries. Finally, from 1 January 2007, no jurisdictional money limit has applied.
(11) At the same time, r 63.25, pertaining to a proceeding other than for the recovery of a debt or damages, was brought into similar form. But that form was dispensed with by amendment of the rules in 2003. At that time, r 63.24(1) was amended to restore the reference to recovery by judgment or otherwise, and a new r 63.24(1.1) was inserted, referable to proceedings for libel or slander. There, likewise, reference was to recovery ‘by judgment or otherwise’.
(12) In Coleman v Queensland Brewery Ltd,[44] a case decided in October 1938, the Queensland Supreme Court had to consider the basis upon which costs were payable in the context of a provision[45] which relevantly said that, if a plaintiff ‘recovers’ less than a specified amount then, if the action could have been brought in the Magistrates’ Court, the plaintiff would only be entitled to Magistrates’ Court costs unless the Court or a judge otherwise ordered.
[44](1939) QWN 2.
[45]Order 91, r 2.
The plaintiff had accepted a payment into court. The question was whether acceptance of money paid into court fell within the verb ‘recovers’. Webb J cited Boulding v Tyler[46] and Parr v Lillicrap[47] as authorities supporting an affirmative answer to that question. Under a relevant English provision at the time when Boulding and Parr were decided, if a plaintiff did not recover a sum exceeding £20 then there should be judgment for the sum only, but no costs. In each of those cases it was held that the verb ‘recovers’ extended to acceptance of money paid into court. It was noted in Parr that it had previously been held that the verb extended to a default judgment and to a Master’s award on a compulsory reference.
[46](1863) 32 LJQB 85.
[47](1862) 32 LJEx 150.
(13) It is said in Civil Procedure Victoria[48] that the concept of recovery of an amount ‘otherwise’ means recovery by compromise of the claim whether or not reached in accordance with the offer of compromise proceeding.[49] No authority is cited for that proposition.
[48]Bailey and Arthur (LexisNexis, 2000) (as currently updated) [63.24.3].
[49]Ibid [63.24.3] 5624.13.
(14) At least since 1896, the Instruments Act (Vic) has contained a version of what is now s 11 of the Instruments Act 1958, which provides that:
In any proceeding in the Supreme Court on a bill in which the amount (exclusive of costs) recovered by judgment or otherwise does not exceed $2000 the costs to be allowed to the plaintiff shall not exceed what would have been allowed if the proceeding had been brought in the county court unless the court orders otherwise.
We mention this provision only to note that Victorian primary legislation, as distinct from rules of court, has long made use of the concept of recovery ‘by judgment or otherwise’; and to record that, so far as we are aware, the ambit of operation of the word ‘otherwise’ has not been addressed in this statutory context.
As we observed earlier, adoption of the formula ‘recovers by judgment or otherwise’ by 1884 in Victoria, in place of reference to recovery by judgment, by acceptance of payment into court, or under a settlement, could imply that the new formula was intended to embrace the more wordy language of the earliest rule. The same notion might be said to arise from the substitution, in 2003, of reference to recovery ‘by judgment or otherwise’ for ‘recovery by judgment or by acceptance of offer of compromise under r 63.24(1)’. On the other hand, circumstances which have been held to fall within the concept of recovery ‘otherwise’ - and to the same effect decisions where the verb ‘recovers’ simpliciter has fallen for consideration — have characteristically been situations in which the court is involved — whether there be entry of default judgment, acceptance of money paid into court under now superseded rules, or acceptance of an offer of compromise. In all of those circumstances, the court was, or now is, seized of a jurisdiction with respect to costs. That is the case except if an offer of compromise is expressed, as it can be, to be inclusive of costs.[50]
[50]Rule 26.02(4)(a).
A settlement, like one permissible form of offer of compromise, may involve offer and acceptance of an amount inclusive of costs — an ‘all in’ offer made and accepted. Again, an offer which is made and accepted may provide for the payment of an amount plus costs, but not specify the costs which the defendant offers to pay. Then there are settlements of the kinds to which we referred at [72] and [73] above.
In the circumstances which we have discussed at [72] and [73] above, where the court is invested with an active role either in determining what costs order should be made, or in making consent orders including orders as to costs, the better view seems to us to be that the concept of recovery ‘otherwise’ can sensibly apply. But it seems to us to be plainly to the contrary in the case of an ‘all in’ settlement, or in the case of a settlement which is entire in itself. In the first of those situations, there is simply no need for the court to become involved except if the party obliged to pay the settlement amount fails to do so. Then a proceeding may be brought upon the settlement.
Then, as regards the second of those situations, the court’s only role is to determine, if dispute arises, what the meaning of the settlement was. That is, the court’s task is one of interpretation of an agreement. We do not see, sensibly, how circumstances of that kind can fall within the description of recovery ‘otherwise’ for the purposes of the rule. The court’s task has nothing to do with the exercise of a costs discretion under r 63A.24.
In the event, we consider, as presently advised, that the settlement agreed in by the plaintiff and the defendants in this case did not attract the operation of r 63A.24. The question which should have been left for consideration by the court was what the agreement meant. Only if the resolution of that question had been that the parties had agreed that the rules as to costs, including r 63A.24, were applicable, could a subsidiary question have arisen as to how the rules should operate in this case.
In this Court, no useful submissions were made as to whether r 63A.24 applied in the particular circumstances. The parties again proceeded from the position that it did so. In the event, we will not express a finally concluded view upon the question whether the position which they took was correct. But in considering whether the defendants should have leave to appeal, we are unwilling to approach the matter on the footing that the particular rule was in point. As we have said, our opinion is rather the contrary.
Third, the judge was invited by both parties to give meaning to the ‘plus costs’ offer made by the defendants in the exercise of what they submitted was his discretion under r 63A.24. This underlines the fact that the task which his Honour was asked to undertake was the wrong task.
Fourth, and to compound this unsatisfactory situation, the defendants sought in this Court to argue that the judge erred by taking account of an irrelevant matter — that is, the meaning of their ‘plus costs’ offer. We respectfully doubt whether the meaning to be given to the defendants’ offer could be a relevant consideration in a r 63A.24 analysis. So, it may be said, his Honour’s analysis was flawed because he took an irrelevant consideration into account. But the parties led the judge into this error, and it ill behoves the defendants to now complain about it. In our opinion, the Court should not lend its assistance to the defendants by granting them leave to appeal so as to facilitate them raising what is a new argument.
Fifth, the plaintiff relied below on the fact that the defendants had sought trial by jury, a mode of trial unavailable in the Magistrates’ Court. The plaintiff did so as the springboard for a submission that there was no way in which the proceeding could have been remitted for trial in the Magistrates’ Court.
It was submitted for the defendants below that, if the plaintiff had initiated her proceeding in the Magistrates’ Court, as she should have done, then the question of trial by jury would never have arisen.
In this Court, the defendants sought to argue that the judge erred by taking into account what he understood to be the impossibility of transferring the proceeding to the Magistrates’ Court as a matter relevant to the exercise of the assumed r 63A.24 discretion. The defendants relied upon the decision of Sifris J in Amanatidis v Darmos [No 2].[51]
[51][2011] VSC 216 [42].
The submissions below with respect to the defendants’ election for trial by jury, and its relevance or otherwise to an exercise of discretion under r 63A.24, were greatly inadequate. The factual circumstances were not properly explored.
Plaintiff’s counsel did inform the judge that, as from the afternoon of 25 August 2017, because jury fees had not been paid, trial was to be by judge alone. But no submission was made for the defendants that, whatever be the situation up until the afternoon of 25 August 2017, the plaintiff’s trial by jury point then disappeared. Nor was any submission made as to the significance of the plaintiff having taken no action to remove the matter into the Magistrates’ Court in the week which followed.
Further, neither party assisted the judge by referring to any provision of the Courts (Case Transfer) Act 1991. Thus, no submissions were made as to whether, despite ss 8(3) and 16(3) of that Act, an administrative transfer was possible under s 26, or whether an order for transfer might have been made under s 30 where the defendants had elected for trial by jury.
Not only were the submissions below on the trial by jury issue inadequate, they remained inadequate in this Court. To the extent that the defendants supplemented what was said below, it was to rely upon the authority, not cited to his Honour, of Amanatidis. Such reliance was for the purposes of a submission that the trial by jury issue was irrelevant to a r 63A.24 exercise of discretion — another matter not raised below.
We would not permit the defendants to advance what is, in this significant respect, a new case on the trial by jury issue. Moreover, not that it is decisive, we note that Amanatidis did not involve a trial by jury election.
We must now say something about arguments advanced by the defendants in support of proposed ground 1, about particular arguments advanced under cover of proposed ground 2, and about the correct approach of this Court in the revealed circumstances.
We are first of opinion that proposed ground 1 lacks force. Whilst it is true that the judge did not refer in his reasons to there being a need for the plaintiff to demonstrate special circumstances why an ‘order otherwise’ should be made, and although his Honour referred to the order which he proposed being ‘fair’, it is quite clear that the proper approach[52] was commended by plaintiff’s counsel in the course of submissions. Counsel correctly stated that his client bore an onus of establishing that the judge should make an order otherwise. He submitted also that what amount the plaintiff reasonably expected to recover was not a relevant factor. He repeatedly addressed what he submitted were ‘special circumstances’ calling for an order otherwise.[53]
[52]Assuming that r 63A.24 had anything to say about this case.
[53]Thereby adopting language used by Menhennitt J, for the Full Court, in O’Doherty [1971] VR 625, 630; a decision the correctness of which has never been doubted — see, for example, Ramadan v Moussa [1984] VR 713, 721–2 (Starke, Murphy and Hampel JJ).
It is, in our opinion, clear that his Honour understood that the plaintiff had to demonstrate the existence of special circumstances before an order otherwise might be made. Indeed, the whole thrust of his Honour’s reasons was to consider whether special circumstances had been demonstrated. There is, all things considered, no basis for a conclusion that his Honour abandoned the correct approach.
Next, with respect to proposed ground 2, and in addition to what we have already said about some of the matters subsumed under cover of that ground, the defendants submitted that the judge erred by taking into account the likely effect of contributory negligence upon the amount which the defendants offered in settlement of the plaintiff’s claim. In our opinion, that submission lacks force. The judge was apparently persuaded that, in principle, some allowance of this kind might be made so as to nominally inflate the quantum of the settlement amount. But his Honour also stated that whilst he believed some discount must have been made, it would be speculative to say what the extent of any discount was. In the event, and despite his Honour’s statement at Reasons [30], we do not accept that it is fairly arguable that his Honour in fact assessed the nominal value of the plaintiff’s case by ‘adding in’ some discount for contributory negligence, this bearing upon the exercise of a r 63A.24 discretion in some way. This is not to say, and we do not say — it being unnecessary to decide the matter — that the authority relied upon by the plaintiff,[54] by analogy, ought be followed in any future r 63A.24 analysis.
[54]Symes (1987) 89 FLR 356. The essential reasoning of Gallop J is at 358 lines 37-49.
Furthermore, it was not submitted for the defendants below that the impact of a possible reduction in the offer for contributory negligence was an irrelevant consideration in a r 63A.24 analysis. This is another instance of the defendants seeking to raise, in this Court, a new argument. They should not be granted leave to appeal, as would facilitate that new case being advanced.
Further, and also bearing upon proposed ground 2, the defendants submitted that the judge’s finding that it was reasonable for the plaintiff to issue the proceeding in the County Court was unsupported by evidence. It was not submitted, we note, that such conclusion was irrelevant, in the particular circumstances of this case, to the exercise of a r 63A.24 discretion.
The judge noted that the plaintiff had submitted that, as at the date of issue, it was reasonable for her to issue her claim in the County Court. He observed that the defendants had not challenged that submission. In this Court, defendants’ counsel submitted that the judge’s observation was not ‘entirely accurate’. But, in truth, the matter in substance went by default below. The defendants ought not now be permitted to advance a contrary position.
We should add this. The judge’s reasons at [15] may disclose error, and at [17] are somewhat incomplete. First, the judge stated at [15] that, when the plaintiff initiated her proceeding, she was in possession of an assessment from a general practitioner indicating that she had a significant injury. If his Honour was referring to Dr Blombery’s certificate, then his Honour was in error, because the proceeding was commenced on 15 May 2015 and Dr Blombery’s certificate was dated 20 July 2015. Second, at [17] the judge stated that, from November 2015, the plaintiff was deemed only able to claim damages in respect of pecuniary loss. This was a correct statement of the position ultimately reached, but it did not paint the full picture. Certainly, the plaintiff was disentitled to recover damages for non-economic loss between November 2015 and May 2017. But then she obtained a certificate of assessment with respect to her alleged psychiatric injury and her entitlement to recover damages for non-economic loss revived — only to be lost again in consequence of the panel’s determination in late July 2017.
It remains to make three points, the first two of which are of general application. The first addresses the submission of defendants’ counsel that this court should grant leave to appeal and allow the appeal because the judge took account of irrelevant considerations in the exercise of his assumed r 63A.24 discretion, and because that situation should not be permitted to stand despite arguments pressed in this Court being very different to submissions made below. We do not agree. Even if we were persuaded that the complaints raised for the defendants were sound, it is of great importance that a new case not be entertained on appeal, a fortiori in a costs matter. Rarely does this Court permit a new case to be argued. It is the more egregious when it is not merely a new case, but a case which is in large part the contrary of that which was advanced below. To refuse leave to appeal in such circumstances does not, of course, necessarily endorse everything said by the judge below.
Second, it is true that the landscape has changes since O’Doherty was decided. The legislative changes to which plaintiff’s counsel referred are instances of that change. No doubt, in a case to which r 63A.24 applies, the concept of ‘special circumstances’ remains relevant. But the exercise of the discretion is not straitjacketed. The judge is invested with a general discretion, which is to be applied in all the circumstances of the particular case.
Third, we should say that we agree with the submission for the plaintiff in this Court that the defendants’ offer was the root cause of the controversy. As counsel for the defendants conceded, the likely consequence of application of the ‘offset’[55] was that the offer was really $25,000 and no costs. To characterise it as a ‘plus costs’ offer was a misuse of language. The offer was not apt to further the overarching purpose of the Civil Procedure Act. On the other hand, the plaintiff, whose affairs were in the hands of lawyers, accepted the offer. This completed the recipe for controversy. It cannot be said that the plaintiff’s side was blameless.
[55]As the defendants evidently intended, and assuming the application of r 63A.24.
We said at [67] above that if leave to appeal was granted and the appeal allowed, we would make the same costs order as did the judge. We should explain why we would do so.
His Honour found that the plaintiff’s case was one of some complexity concerning the liability of any of the defendants, the extent of the plaintiff’s injuries and whether she had suffered loss of earning capacity. He referred to a defendant’s plea that, as a tenant, the plaintiff had ‘the legal obligation to maintain the driveway’. There was no challenge to his Honour’s finding. It was relevant to the exercise of a discretion under r 63A.24, and it assisted the plaintiff.
A second circumstance tending to the conclusion that an order otherwise should be made was the very late stage at which the plaintiff’s entitlement to recover damages for non-economic loss was finally foreclosed — as we have said, it was only about five weeks before trial. The plaintiff was left with a short period in which to assimilate that change in circumstances. This circumstance does not involve any attempt to assess the dollar value of pain and suffering damages. Its significance is rather the late loss of entitlement to a discrete head of damages.
A third circumstance tending in the plaintiff’s favour was the very late stage at which the prospective trial converted from being one by jury to one by judge alone. Not deciding, in the absence of full argument, whether some form of case transfer might have been availed of before 25 August 2017, it is at least clear that any doubt about the position was only removed a week before trial. This left a short, and no doubt hectic, period within which the plaintiff must have made and implemented a decision to seek a transfer of the case to the Magistrates’ Court. The defendants, of course, were at liberty to make a transfer application, at least from 25 August 2017, if not earlier.
Orders
We will refuse the defendants’ application for leave to appeal.
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