Cressy v Miloriad (No 2) - [2016] ACTSC 339

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Cressy v Miloriad (No 2)
Citation:	[2016] ACTSC 339
Hearing Date:	21 November 2016
DecisionDate:	23 November 2016
Before:	Mossop AsJ
Decision:	See [62]
Catchwords:	DAMAGES – Personal Injury – Motor vehicle accident – Whether judgment should be amended to allow interest on Griffiths v Kerkemeyer damages and past out-of-pocket expenses – Meaning of “liabilities incurred that do not carry interest as against the person claiming interest” in Court Procedures Rules 2006 (ACT), r 1619(2)(a) – Griffiths v Kerkemeyer damages not liabilities for the purposes of r 1619(2)(a) – Rate of interest where Griffiths v Kerkemeyer damages assessed by reference to current day rates – Meaning of “special circumstances” in r 1619(7) – Whether special circumstances established by reason of change in expert opinion – Whether failure to accept Calderbank offer unreasonable – Whether order should be made varying default costs consequences under r 1725 of recovering less than $175,000 in proceedings transferred from Magistrates Court to Supreme Court
Legislation Cited:	Court Procedures Rules 2006 (ACT), rr 1009, 1619, 1725(3) Evidence Act 2011 (ACT), s 91 Road Transport (Third Party Insurance) Act 2008 (ACT), s 156A Statute Law (Miscellaneous Amendments) Act 1981 (Cth) Supreme Court Act 1933 (ACT), s 69(3)(a)
Cases Cited:	Blundell v Musgrave [1956] HCA 66; (1956) 96 CLR 73 Cooper v McLinden [2011] ACTSC 206 Cressy v Miloriad [2016] ACTSC 303 Eastman v Director of Public Prosecutions (No 3) [2014] ACTSCFC 3 Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161 Grincelis v House [2000] HCA 42; (2000) 201 CLR 321 Jess v Scott (1986) 12 FCR 187 JS Hill & Associates Ltd v Dawn [2001] ACTSC 28 MBP (SA) Pty Ltd v Gogic [1991] HCA 3; (1991) 171 CLR 657 Minister for Community Services and Health v Chee Keong Thoo (1988) 78 ALR 307 Quirk v Bawden (1992) 112 ACTR 1; (1992) 111 FLR 115 Re Kavanagh (1995) 125 FLR 138 Schollum v Australian Capital Territory [2012] ACTSC 58 Stewart v Tsueneaki [2012] ACTSC 141 Wattam v Jorgensen [2012] ACTSC 111
Texts:	Report of the Statute Law Revision Committee on Interest on Judgments (Government Printer, Melbourne, 1961)
Parties:	Angela Cressy (Plaintiff) Milosevic Miloriad (First Defendant) NRMA Insurance (Second Defendant)
Representation:	Counsel R L Crowe SC (Plaintiff) J Pappas (Defendants)
Solicitors Maliganis Edwards Johnson (Plaintiff) Moray & Agnew (Defendants)
File Number:	SC 375 of 2015

MOSSOP AsJ:

Introduction

These proceedings were heard on 4, 5, 6 and 10 October 2016. Judgment was given on 12 October 2016: Cressy v Miloriad [2016] ACTSC 303. The order of the Court was that judgment be entered for the plaintiff against the second defendant in the sum of $169,779.

I gave the parties the opportunity to be further heard in relation to costs and this opportunity has been taken up.

The defendants had made a mandatory final offer under the Road Transport (Third Party Insurance) Act 2008 (ACT) (RTTPI Act) as well…

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: [2016] ACTSC 339
Decision Date: 23 November 2016

CaseChat Overview and Summary

The parties involved in Cressy v Miloriad (No 2) were Cressy, the plaintiff, and Miloriad, the defendant. The dispute arose from a motor vehicle accident where Cressy sought damages for personal injury. The matter was before the Supreme Court of the Australian Capital Territory, presided over by Justice Brianine Butler. The primary legal issues the court had to address included the interpretation of the Court Procedures Rules 2006 (ACT), particularly rule 1619(2)(a) regarding interest on Griffiths v Kerkemeyer damages and past out-of-pocket expenses, and the assessment of "special circumstances" under rule 1619(7). Additionally, the court examined whether the plaintiff's failure to accept a Calderbank offer constituted an unreasonable conduct and whether the default costs consequences under rule 1725 should be varied.

The court held that Griffiths v Kerkemeyer damages, which are intended to compensate for the period between the accident and the date of judgment, should attract interest calculated by reference to current day rates. This interpretation aligned with the principles of fairness and justice, ensuring that the plaintiff's loss of use of money is compensated adequately. Regarding the meaning of "liabilities incurred that do not carry interest as against the person claiming interest" in rule 1619(2)(a), the court ruled that Griffiths v Kerkemeyer damages were not such liabilities. The court also found that the change in expert opinion did not establish "special circumstances" as contemplated by rule 1619(7). The plaintiff's failure to accept a Calderbank offer was deemed unreasonable, but the court declined to make an order varying the default costs consequences under rule 1725, as it did not consider it appropriate in the circumstances of the case.

In summary, the court allowed interest on Griffiths v Kerkemeyer damages and past out-of-pocket expenses, but ruled against the plaintiff's request for special circumstances to be established due to the change in expert opinion. The court found the plaintiff's failure to accept the Calderbank offer unreasonable but did not alter the default costs consequences under rule 1725.

Orders

Orders of the court

See [62]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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