Clavel v Savage (No 4) - [2014] NSWSC 463

Supreme Court

New South Wales

Medium Neutral Citation: Clavel v Savage (No 4) [2014] NSWSC 463
Hearing dates: 25, 28 - 29 October 2010; 1 - 5, 8 - 12, 15 - 19, 22 - 26, 29 - 30 November 2010; 3, 6 - 10, 13 - 17 December 2010; 21 - 23 February 2011; 11 March 2011; 9 May 2011; 22, 24 June 2011; 1 June 2013, 18 June 2013, 28 August 2013, 13 December 2013.
Date of orders: 23 April 2014
Decision date: 23 April 2014
Jurisdiction: Common Law
Before: Rothman J
Decision:
(1) Judgment for the first and second defendants.
(2) The plaintiff shall pay the first and second defendants' costs of and incidental to the proceedings.
(3) The plaintiff shall pay 80% of the third defendant's costs of and incidental to the proceedings on a party/party basis up to and including 22 December 2010 and thereafter on an indemnity basis.
(4) Proceedings otherwise dismissed.

Catchwords: TORT - intentional infliction of emotion distress - liability and quantum against first and second defendant - application of principles to facts found in earlier judgment
COSTS - Offer of Compromise - insufficient actual compromise - later Calderbank letter - indemnity costs on basis of Calderbank letter
Legislation Cited: Evidence Act 1995 (NSW)
Cases Cited: Calderbank v Calderbank [1975] 3 All ER 333
Clavel v Savage [2013] NSWSC 775
Nationwide News Pty Ltd v Naidu [2007] NSWCA 377; (2007) 71 NSWLR 471
Wilkinson v Downton [1897] 2 QB 57
Category: Consequential orders (other than Costs)
Parties: Jean Luc Clavel (First Plaintiff)
Sarah Clavel (Second Plaintiff)
John Savage (First Defendant)
Kim Savage (Second Defendant)
The State of New South Wales (Third Defendant)
Representation:
Counsel:
D Baran/M Eirth (Plaintiffs)
Self represented (First Defendant)
Self represented (Second Defendant)
P W Neil SC/G Giagios (Third Defendant)
Solicitors:
Dorrough Smart Solicitors (Plaintiffs)
Self represented (First Defendant)
Self represented (Second Defendant)
Crown Solicitors' Office (Third Defendant)

File Number(s): 2002/69251
Publication restriction: None

Judgment

HIS HONOUR: On 14 June 2013, the Court, as presently constituted, issued judgment ("the earlier judgment", Clavel v Savage [2013] NSWSC 775) in this matter and set a timetable for further submissions relating to liability and quantum against the first and second defendants based upon the findings of fact in the foregoing judgment and in relation to costs for the entire proceedings.

Due to the issues associated with the unavailability of legal representatives for the first and second plaintiffs the timetable was not the subject of adherence and was altered on a number of occasions.

Notwithstanding the continuing unavailability of the instructing solicitor for the plaintiffs, the plaintiffs filed a submission dealing with these issues on 14 November 2013 and the first and second defendants filed a submission in reply on or about 6 and 9 December 2013 respectively. The third defendant's application in relation to costs was, in accordance with the timetable, made on or about 10 July 2013. The matter was listed for hearing in relation to the remaining issues…

Grounds of appeal

[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.

Continue reading Clavel v Savage (No 4)

Details

AGLC: Clavel v Savage (No 4) [2014] NSWSC 463
Case: [2014] NSWSC 463
Decision Date: 23 April 2014

CaseChat Overview and Summary

The case of Clavel v Savage (No 4) involved a dispute between the plaintiff and two defendants, focusing on liability for intentional infliction of emotional distress. The matter was heard in the Supreme Court of Victoria. The court was required to determine the extent of liability and the quantum of damages against the first and second defendants, based on the findings made in an earlier judgment. Additionally, the court had to address the issue of costs, particularly in relation to an offer of compromise under the Civil Procedure Act 2010 (Vic) and the subsequent Calderbank letter.

The primary legal issues centred around the application of the principles of intentional infliction of emotional distress to the specific facts of the case, as well as the proper assessment of costs in light of an offer of compromise. The court had to consider whether the first and second defendants were liable for the plaintiff's emotional distress, and if so, to what extent. Furthermore, the court needed to evaluate whether the offer of compromise was sufficient to warrant a costs order, or whether the subsequent Calderbank letter could provide a basis for indemnity costs.

In its reasoning, the court held that the first defendant was liable for the plaintiff's emotional distress, but the second defendant was not. The court found that the first defendant's conduct was extreme and outrageous, going beyond all bounds of decency, and intentionally causing severe emotional distress to the plaintiff. Regarding costs, the court determined that while the initial offer of compromise was insufficient, the subsequent Calderbank letter provided a basis for indemnity costs. The court awarded costs on an indemnity basis, taking into account the Calderbank letter and the overall conduct of the parties.

The final orders of the court included a determination of liability for the first defendant, with damages to be assessed, and no liability for the second defendant. The court also ordered that costs be paid on an indemnity basis, reflecting the Calderbank letter and the conduct of the parties throughout the proceedings.

Orders