CSS -v- KD [No 2] [2017] WADC 61

Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2017] WADC 61
Published:	04/05/2017
Case No:	CIV:3468/2012	Heard:	3 MAY 2017
Coram:	DERRICK DCJ	Delivered:	3/05/17
Location:	PERTH
No of pages:	12	Judgment Part:	1 of 1
Result:	Application dismissed
PDF Version

Parties:	CSS KD
Catchwords:	Practice and procedure Costs Offer of compromise made prior to trial under O 24A of the Rules of the Supreme Court 1971 (WA) Offer not accepted by plaintiff Whether judgment obtained by plaintiff not more favourable than offer Whether discretion to refuse to award costs to the plaintiff should be exercised
Legislation:	District Court Act 1969 (WA) Rules of the Supreme Court 1971 (WA) Supreme Court Act 1935 (WA)
Case References:	CSS v KD [2016] WADC 82 Fortron Automotive Treatments Pty Ltd v Eurotime Holdings Pty Ltd [2001] WASCA 384

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : CSS -v- KD [No 2] [2017] WADC 61 CORAM : DERRICK DCJ HEARD : 3 MAY 2017 DELIVERED : 3 MAY 2017 PUBLISHED : 4 MAY 2017 FILE NO/S : CIV 3468 of 2012 BETWEEN : CSS

Plaintiff

AND

Defendant

Catchwords:

Practice and procedure - Costs - Offer of compromise made prior to trial under O 24A of the Rules of the Supreme Court 1971 (WA) - Offer not accepted by plaintiff - Whether judgment obtained by plaintiff not more favourable than offer - Whether discretion to refuse to award costs to the plaintiff should be exercised

Legislation:

District Court Act 1969 (WA)

Rules of the Supreme Court 1971 (WA)
Supreme Court Act 1935 (WA)

Result:

Application dismissed

Representation:

Counsel:

Plaintiff : Mr S V Forbes

Defendant : Mr P E Jarman

Solicitors:

Plaintiff : Simon Walters

Defendant : Jarman McKenna

Case(s) referred to in judgment(s):

CSS v KD [2016] WADC 82
Fortron Automotive Treatments Pty Ltd v Eurotime Holdings Pty Ltd [2001] WASCA 384

DERRICK DCJ

: [This judgment was delivered extemporaneously on 3 May 2017 and has been edited from the transcript.]

Introduction

1 Over a period of 10 days in March 2016 I presided over the trial of the plaintiff's claim for damages arising out of a motor vehicle accident caused by the defendant's negligence. The plaintiff's claim was for an amount in excess of $1,000,000.

2 On 31 May 2016 I delivered my judgment: CSS v KD [2016] WADC 82. I made an order that judgment be entered for the plaintiff in the amount of $102,448. At the request of the defendant, I adjourned the plaintiff's application for costs and granted the parties liberty to apply.

3 The defendant has now made an application by way of a chamber summons dated 23 November 2016 (the application) for orders in the following terms:

1. The defendant do pay the plaintiff's costs of the action up to 25 June 2015 to be taxed if not agreed.

2. The plaintiff do pay the defendant's costs of the action from 26…

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 CSS v KD [No 2]

Details

AGLC: CSS v KD [No 2] [2017] WADC 61
Case: [2017] WADC 61
Decision Date: 3 MAY 2017

CaseChat Overview and Summary

The case of CSS v KD [No 2] before the Supreme Court of Western Australia involved a dispute over the refusal of the defendant to accept a pre-trial offer of compromise made by the plaintiff under Order 24A of the Rules of the Supreme Court 1971. The plaintiff ultimately secured a judgment that was not more favourable than the offer, prompting the defendant to argue that the court should exercise its discretion to refuse to award costs to the plaintiff. The central legal issue was whether the plaintiff's judgment was not more favourable than the offer of compromise, and if so, whether the court should refuse to award costs to the plaintiff.

The court considered the relevant provisions of Order 24A, which outlines the procedure for offers of compromise and the court's discretion to refuse to award costs. The court determined that the plaintiff's judgment was not more favourable than the offer of compromise. However, in exercising its discretion, the court found that the plaintiff's entitlement to costs was not negated solely because the judgment was not more favourable than the offer. The court considered various factors, including the nature of the proceedings, the plaintiff's conduct, and the potential impact on the administration of justice. Ultimately, the court decided that the plaintiff's entitlement to costs should not be refused.

The court's reasoning reflected a balanced approach to the application of Order 24A, recognising the importance of encouraging offers of compromise while also considering the broader context of the litigation. The court's decision highlighted the need for a nuanced application of the rule, taking into account the specific circumstances of each case. In this instance, the court concluded that the plaintiff's entitlement to costs should not be refused, and the defendant's application was dismissed.

Orders

Orders of the court

Application dismissed

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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