Cleere v Matic Service Pty. Ltd. [No. 2] - [2005] NSWCA 176

CITATION:
Cleere v. Matic Service Pty. Ltd. [No. 2] [2005] NSWCA 176

HEARING DATE(S):
on papers

JUDGMENT DATE:

24 May 2005

JUDGMENT OF:
Beazley JA; Hodgson JA; Barrett J

DECISION:
The respondent to pay 80% of the appellant's costs of the appeal assessed on a party/party basis.; The respondent to have a certificate under the Suitors Fund Act 1951 (NSW) if so entitled.; The parties are directed to bring in Short Minutes of Order in accordance with these reasons and those of the Court given on 10 December 2004.

CATCHWORDS:
APPEAL - indemnity costs - offer of compromise made by defendant at trial pursuant to Pt 19A District Court Rules - court's discretion as to costs - s.76 Supreme Court Act - COSTS - appellant ultimately successful on appeal but unsuccessful on issue of contributory negligence - whether appellant entitled to entirety of their costs

LEGISLATION CITED:
District Court Rules 1973 (NSW)
Supreme Court Act 1970 (NSW)
Workers Compensation Act 1987 (NSW)

CASES CITED:
Ettingshausen v Australian Consolidated Press (1995) 38 NSWLR 404
Moore v Woodforth (No.2) [2003] NSWCA 46
Oshlack v Richmond River Council (1998) 193 CLR 72
South Sydney Council v Morris (No.3) [2001] NSWCA 200
South Sydney Council v Walsh (No.2) [2003] NSWCA 111

PARTIES:
Michael Cleere - Appellant
Matic Service Pty. Limited - Respondent

FILE NUMBER(S):
CA CA 41102/2003

COUNSEL:
A.J. Lidden/Ms E Welsh - Appellant
D.G. Nock SC - Respondent

SOLICITORS:
Bryden's Law Office - Appellant
Vandervords - Respondent

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
12269/01

LOWER COURT JUDICIAL OFFICER:
Sorby DCJ

CA 41102/03
DC 12269/01

BEAZLEY JA
HODGSON JA
BARRETT J
24 May 2005

CLEERE v. MATIC SERVICE PTY. LIMITED [NO. 2]

Judgment

1 THE COURT: On 10 December 2004 this Court gave judgment ([2004] NSWCA 453) allowing the appeal in part and requiring the parties to bring in Short Minutes of Order. The respondent now makes an application that despite the appellant’s partial success on the appeal, he should pay the respondent’s costs of the appeal on an indemnity basis.

2 The appellant was injured in the course of his employment with the respondent on 23 February 2000. He was successful in his claim for damages in the District Court and was awarded the sum of $196,191.00. This amount was calculated after the deduction of a finding of 25% contributory negligence. It appears that that sum did not include any deduction for moneys paid under the Workers Compensation Act 1987 (NSW).

3 The appellant appealed to this Court challenging the trial judge’s finding as to contributory negligence and also challenging the adequacy of all components of the award of damages, save for out of pocket expenses. The respondent conceded from the outset that the trial judge omitted to include an amount for the Fox v. Wood component and that an award in an agreed amount of $9,530.00 had to be included in the final award of damages. The parties also agreed that the trial judge’s approach to superannuation…

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.

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Details

Case: [2005] NSWCA 176
Decision Date: 24 May 2005

CaseChat Overview and Summary

Cleere v Matic Service Pty. Ltd. [No. 2] concerned an appeal to the Supreme Court of New South Wales, Court of Appeal, following a trial in the District Court. The appellant, Cleere, had been successful on appeal, although not entirely successful at trial, and sought to recover their costs. The central dispute revolved around the appellant's entitlement to indemnity costs, particularly in light of an offer of compromise made by the respondent, Matic Service Pty. Ltd., pursuant to Part 19A of the District Court Rules.

The Court of Appeal was required to determine whether the appellant was entitled to the entirety of their costs of the appeal, given that they had been successful on appeal but had also been found contributorily negligent at trial. This involved considering the court's discretion regarding costs, specifically in relation to the offer of compromise and the provisions of s.76 of the Supreme Court Act. The court had to weigh the overall success of the appellant on appeal against the partial success and the existence of the offer of compromise.

The Court of Appeal ultimately ordered that the respondent pay 80% of the appellant's costs of the appeal, assessed on a party/party basis. This outcome reflects a discretionary assessment of the competing factors, including the appellant's ultimate success on appeal and the respondent's offer of compromise, which likely influenced the apportionment of costs. The respondent was also granted a certificate under the Suitors Fund Act 1951 (NSW), if entitled.

Orders

Orders of the court

The respondent to pay 80% of the appellant's costs of the appeal assessed on a party/party basis.; The respondent to have a certificate under the Suitors Fund Act 1951 (NSW) if so entitled.; The parties are directed to bring in Short Minutes of Order in accordance with these reasons and those of the Court given on 10 December 2004.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Cleere v. Matic Service Pty. Ltd. [No. 2] [2005] NSWCA 176
HEARING DATE(S):	on papers
JUDGMENT DATE:	24 May 2005
JUDGMENT OF:	Beazley JA; Hodgson JA; Barrett J
DECISION:	The respondent to pay 80% of the appellant's costs of the appeal assessed on a party/party basis.; The respondent to have a certificate under the Suitors Fund Act 1951 (NSW) if so entitled.; The parties are directed to bring in Short Minutes of Order in accordance with these reasons and those of the Court given on 10 December 2004.

CATCHWORDS:	APPEAL - indemnity costs - offer of compromise made by defendant at trial pursuant to Pt 19A District Court Rules - court's discretion as to costs - s.76 Supreme Court Act - COSTS - appellant ultimately successful on appeal but unsuccessful on issue of contributory negligence - whether appellant entitled to entirety of their costs
LEGISLATION CITED:	District Court Rules 1973 (NSW) Supreme Court Act 1970 (NSW) Workers Compensation Act 1987 (NSW)
CASES CITED:	Ettingshausen v Australian Consolidated Press (1995) 38 NSWLR 404 Moore v Woodforth (No.2) [2003] NSWCA 46 Oshlack v Richmond River Council (1998) 193 CLR 72 South Sydney Council v Morris (No.3) [2001] NSWCA 200 South Sydney Council v Walsh (No.2) [2003] NSWCA 111
PARTIES:	Michael Cleere - Appellant Matic Service Pty. Limited - Respondent
FILE NUMBER(S):	CA CA 41102/2003
COUNSEL:	A.J. Lidden/Ms E Welsh - Appellant D.G. Nock SC - Respondent
SOLICITORS:	Bryden's Law Office - Appellant Vandervords - Respondent

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	12269/01
LOWER COURT JUDICIAL OFFICER:	Sorby DCJ