Legal Research
Cases
Coombes v Roads and Traffic Authority (No 2)

Coombes v Roads and Traffic Authority (No 2)

Link copied

Case Copied 29 March 2007 52 min read

Contents

On this page

New South Wales

Court of Appeal

CITATION: Coombes v Roads and Traffic Authority & Ors (No 2) [2007] NSWCA 70
This decision has been amended. Please see the end of the judgment for a list of the amendments.

JUDGMENT DATE:
29 March 2007

JUDGMENT OF: Beazley JA at 1; Ipp JA at 87; Basten JA at 88

DECISION: 1. Order Bombala Council to pay the costs of the RTA incurred by the RTA on the appellant’s claim against the RTA at trial and on appeal, those costs to be paid by Bombala Council directly to the RTA; 2. Declare that the costs of the appellant ordered by this Court be paid by Bombala Council, including the appellant’s costs of prosecuting her claim against the RTA, both at trial and on appeal; 3. Order that the costs of the appellant at trial be paid by Bombala Council on a solicitor/client basis; 4. Order that the costs of the appellant on the appeal be paid by Bombala Council on a party/party basis; 5. Verdict for the RTA on its Amended Notice of Cross-Claim against Bombala Council; 6. Order Bombala Council to pay the RTA’s costs of the RTA’s Amended Notice of Cross-Claim at trial and on appeal; 7. Verdict for the RTA on Bombala Council’s Notice of Second Cross-Claim; 8. Order Bombala Council to pay the RTA’s costs of Bombala Council’s Notice of Second Cross-Claim at trial and on appeal; 9. Verdict for the third respondent on the third respondent’s Notice of Third Cross-Claim at trial and on appeal; 10. Order Bombala Council to pay the third respondent’s costs of the third respondent’s Notice of Third Cross-Claim at trial and on appeal.

CATCHWORDS: Costs – Bullock or Sanderson order – liability of unsuccessful defendant for costs of successful defendant – whether fair to impose costs - failure to admit responsibility where responsibility should have been known - Costs – costs on appeal – no fresh offer of compromise between trial and appeal – no unreasonable or delinquent conduct - whether court should exercise discretion to make indemnity costs order on appeal – indemnity costs order not made - Costs – offer of compromise – offer limited to liability – whether offer capable of acceptance – verdict no less favourable to plaintiff than offer of compromise - Costs - procedure – offer made pursuant to District Court Rules 1973 (NSW) – trial decision delivered before commencement of Uniform Civil Procedure Rules 2005 (NSW) – whether savings provisions of Uniform Civil Procedure Act 2005 (NSW) apply - whether Court should make order otherwise than in accordance with Uniform Civil Procedure Rules

LEGISLATION CITED: Civil Procedure Act 2005 (NSW) s 3, Sch 6 cl 5, Sch 6 cl 5(2), Sch 6 cl 10(b)
District Court Rules 1973 (NSW) Pt 19A, Pt 19A r 2, Pt 19A r 3(7), Pt 19A r 10, Pt 39A r 25, Pt 39 r 25(4), Pt 39A r 25(4A)
Law Reform (Miscellaneous Provisions) Act 1946 (NSW) s 5
Supreme Court…

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.

Keep reading for free

Create a free CaseChat account to read Coombes v Roads and Traffic Authority (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2007] NSWCA 70
Decision Date: 29 March 2007

CaseChat Overview and Summary

The case of *Coombes v Roads and Traffic Authority (No 2)* concerned an appeal and cross-claims arising from a trial judgment. The primary dispute involved the appellant's claim against the Roads and Traffic Authority (RTA), with Bombala Council and a third respondent also involved in cross-claims. The matter was heard in the Court of Appeal of New South Wales.

The Court of Appeal was required to determine several issues relating to costs, including whether to make a *Bullock* or *Sanderson* order, which addresses the liability of an unsuccessful defendant for the costs of a successful defendant. The court also considered whether it was fair to impose such costs, particularly in light of an alleged failure to admit responsibility where it should have been known. Further, the court examined the circumstances under which indemnity costs might be awarded on appeal, especially in the absence of a fresh offer of compromise or unreasonable conduct. The efficacy of an offer of compromise limited to liability, and its interaction with the Uniform Civil Procedure Rules 2005 (NSW) and its predecessor, the District Court Rules 1973 (NSW), were also central to the determination.

The court reasoned that a *Bullock* or *Sanderson* order was appropriate given the circumstances, finding it fair to impose costs on Bombala Council for the RTA's costs. The court declined to make an indemnity costs order on appeal, noting the absence of a fresh offer of compromise and no unreasonable or delinquent conduct by the appellant. The court also considered the offer of compromise made pursuant to the District Court Rules, finding it capable of acceptance and that the verdict was no less favourable to the plaintiff than the offer. The court determined that the savings provisions of the Uniform Civil Procedure Act 2005 (NSW) applied, allowing the court to make orders otherwise than in strict accordance with the new rules.

The court made various orders regarding the payment of costs. Bombala Council was ordered to pay the RTA's costs incurred on the appellant's claim against the RTA, both at trial and on appeal, directly to the RTA. Bombala Council was also ordered to pay the appellant's costs of prosecuting her claim against the RTA, both at trial and on appeal, with trial costs on a solicitor/client basis and appeal costs on a party/party basis. Furthermore, Bombala Council was ordered to pay the RTA's costs of its amended notices of cross-claim and Bombala Council's notices of cross-claim, as well as the third respondent's costs of its notice of third cross-claim, at both trial and on appeal.

Orders

Orders of the court

1. Order Bombala Council to pay the costs of the RTA incurred by the RTA on the appellant's claim against the RTA at trial and on appeal, those costs to be paid by Bombala Council directly to the RTA; 2. Declare that the costs of the appellant ordered by this Court be paid by Bombala Council, including the appellant's costs of prosecuting her claim against the RTA, both at trial and on appeal; 3. Order that the costs of the appellant at trial be paid by Bombala Council on a solicitor/client basis; 4. Order that the costs of the appellant on the appeal be paid by Bombala Council on a party/party basis; 5. Verdict for the RTA on its Amended Notice of Cross-Claim against Bombala Council; 6. Order Bombala Council to pay the RTA's costs of the RTA's Amended Notice of Cross-Claim at trial and on appeal; 7. Verdict for the RTA on Bombala Council's Notice of Second Cross-Claim; 8. Order Bombala Council to pay the RTA's costs of Bombala Council's Notice of Second Cross-Claim at trial and on appeal; 9. Verdict for the third respondent on the third respondent's Notice of Third Cross-Claim at trial and on appeal; 10. Order Bombala Council to pay the third respondent's costs of the third respondent's Notice of Third Cross-Claim at trial and on appeal.

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:	Coombes v Roads and Traffic Authority & Ors (No 2) [2007] NSWCA 70 This decision has been amended. Please see the end of the judgment for a list of the amendments.
JUDGMENT DATE:	29 March 2007
JUDGMENT OF:	Beazley JA at 1; Ipp JA at 87; Basten JA at 88
DECISION:	1. Order Bombala Council to pay the costs of the RTA incurred by the RTA on the appellant’s claim against the RTA at trial and on appeal, those costs to be paid by Bombala Council directly to the RTA; 2. Declare that the costs of the appellant ordered by this Court be paid by Bombala Council, including the appellant’s costs of prosecuting her claim against the RTA, both at trial and on appeal; 3. Order that the costs of the appellant at trial be paid by Bombala Council on a solicitor/client basis; 4. Order that the costs of the appellant on the appeal be paid by Bombala Council on a party/party basis; 5. Verdict for the RTA on its Amended Notice of Cross-Claim against Bombala Council; 6. Order Bombala Council to pay the RTA’s costs of the RTA’s Amended Notice of Cross-Claim at trial and on appeal; 7. Verdict for the RTA on Bombala Council’s Notice of Second Cross-Claim; 8. Order Bombala Council to pay the RTA’s costs of Bombala Council’s Notice of Second Cross-Claim at trial and on appeal; 9. Verdict for the third respondent on the third respondent’s Notice of Third Cross-Claim at trial and on appeal; 10. Order Bombala Council to pay the third respondent’s costs of the third respondent’s Notice of Third Cross-Claim at trial and on appeal.
CATCHWORDS:	Costs – Bullock or Sanderson order – liability of unsuccessful defendant for costs of successful defendant – whether fair to impose costs - failure to admit responsibility where responsibility should have been known - Costs – costs on appeal – no fresh offer of compromise between trial and appeal – no unreasonable or delinquent conduct - whether court should exercise discretion to make indemnity costs order on appeal – indemnity costs order not made - Costs – offer of compromise – offer limited to liability – whether offer capable of acceptance – verdict no less favourable to plaintiff than offer of compromise - Costs - procedure – offer made pursuant to District Court Rules 1973 (NSW) – trial decision delivered before commencement of Uniform Civil Procedure Rules 2005 (NSW) – whether savings provisions of Uniform Civil Procedure Act 2005 (NSW) apply - whether Court should make order otherwise than in accordance with Uniform Civil Procedure Rules
LEGISLATION CITED:	Civil Procedure Act 2005 (NSW) s 3, Sch 6 cl 5, Sch 6 cl 5(2), Sch 6 cl 10(b) District Court Rules 1973 (NSW) Pt 19A, Pt 19A r 2, Pt 19A r 3(7), Pt 19A r 10, Pt 39A r 25, Pt 39 r 25(4), Pt 39A r 25(4A) Law Reform (Miscellaneous Provisions) Act 1946 (NSW) s 5 Supreme Court…