Dib v Amaca Pty Limited (No. 2)
[2017] NSWDDT 9
•10 October 2017
Dust Diseases Tribunal
New South Wales
Medium Neutral Citation: Dib v Amaca Pty Limited (No. 2) [2017] NSWDDT 9 Hearing dates: On the papers Date of orders: 10 October 2017 Decision date: 10 October 2017 Before: Judge D. Russell Decision: 1. Order the defendant to pay the plaintiff’s costs assessed on a party and party basis up to and including 23 May 2017.
2. Order the defendant to pay the plaintiff’s costs on an indemnity basis from and including 24 May 2017.
3. Order the defendant to pay the plaintiff’s costs of the application for these orders.Catchwords: COSTS – Offer of Compromise Legislation Cited: Dust Diseases Tribunal Regulation 2013 Category: Costs Parties: Fred Dib (plaintiff)
Amaca Pty Limited (formerly James Hardie & Coy Pty Ltd) (defendant)Representation: Counsel:
Solicitors:
P Semmler QC (plaintiff)
S Tzouganatos (plaintiff)
D Priestley SC (defendant)
J Sheller (defendant)
Turner Freeman Lawyers (plaintiff)
Mills Oakley (defendant)
File Number(s): DDT 275/2016
Judgment ON COSTS
INTRODUCTION
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The trial in this matter took place over seven days in late July and early August 2017. Judgment in favour the plaintiff for $553,538 plus costs was delivered on 22 August 2017.
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Liberty was granted to either party who wished to seek a different costs order to apply, and the matter of costs was to be dealt with on the papers after consideration of the written submissions filed by both parties. Neither party requested the opportunity to make oral submissions.
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The plaintiff seeks an order that the defendant pay costs on a party and party basis up to and including 23 May 2017 and thereafter on an indemnity basis. The plaintiff relies upon service of an Offer of Compromise dated 23 May 2017.
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The defendant opposes such an order. The defendant seeks an order that the plaintiff pay the defendant the costs of an issue upon which the plaintiff lost, that being the plaintiff’s claim for future economic loss being loss of the continuing receipt of the Commonwealth age pension.
THE OFFER OF COMPROMISE
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A mediation under the Claims Resolution Process prescribed by the Dust Diseases Tribunal Regulation 2013 was held on 23 May 2017. That mediation, which involved a meeting between the representatives of the parties, in front of Mr McIntyre SC, concluded on the afternoon of 23 May 2017. Mr McIntyre flew out of the jurisdiction that night.
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At 5.31pm on 23 May 2017 an email was sent by the plaintiff’s solicitor to the defendant’s solicitor enclosing an Offer of Compromise.
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By the Offer of Compromise the plaintiff offered to compromise his claim on the basis that the defendant pay him $415,000 in full satisfaction of his claim for damages exclusive of costs. $1,400 payable to Medicare Australia was to be deducted from the settlement. The document stated that it was an Offer of Compromise made in accordance with Clause 89 of the Dust Diseases Tribunal Regulation 2013. The offer remained open to be accepted until 5.00pm on Thursday, 1 June 2017. The Offer of Compromise was thus open for acceptance for just short of nine days after service.
OFFERS OF COMPROMISE IN THE DUST DISEASES TRIBUNAL
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Part 6 of the Dust Diseases Tribunal Regulation 2013 deals with offers of compromise in the Tribunal. The Part displaces any other rules of court with respect to offers of compromise – Clause 87.
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Clause 89 requires an offer of compromise to be in writing, to be exclusive of costs and to bear a statement that the offer is made in accordance with Clause 89.
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By Clause 89(4) an offer made by a plaintiff may be expressed to be limited as to the time it is open to be accepted. That time cannot be less than seven days after the offer is made, if the offer is made after mediation of the claim under the Claims Resolution Process has been concluded.
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I find as a fact that the mediation of the claim under the Claims Resolution Process concluded at about 4.00pm on 23 May 2017. The Offer of Compromise in the present case was thus open for acceptance for slightly more than seven days. It complied with Clause 89(4).
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The plaintiff relies upon Clause 90 which provides as follows:
“Where offer not accepted and judgment no less favourable to plaintiff
(1) This clause applies if the offer concerned is made by the plaintiff, but not accepted by the defendant, and the plaintiff obtains an order or judgment on the claim concerned no less favourable to the plaintiff than the terms of the offer.
(2) Unless the Tribunal orders otherwise in an exceptional case and for the avoidance of substantial injustice, the plaintiff is entitled to an order against the defendant for the plaintiff’s costs in respect of the claim:
(a) assessed on a party and party basis up to the time from which those costs are to be assessed on an indemnity basis under paragraph (b), and
(b) assessed on an indemnity basis:
(i) if the offer was made before the first day of the trial, as from the beginning of the day following the day on which the offer was made, and
(ii) if the offer was made on or after the first day of the trial, as from 11.00am on the day following the day on which the offer was made.
(3) If the Tribunal in an exceptional case and for the avoidance of substantial injustice otherwise orders as referred to in sub-clause (1), the Tribunal must give it reasons for so ordering.”
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The defendant submitted that the offer was not open for a sufficient length of time as there was no evidence when the mediation concluded. The parties had liberty to file not only written submissions but any further evidence relevant to the question of costs. The evidence put on by the plaintiff satisfies me that the mediation concluded on the afternoon of 23 May 2017. In the light of that factual finding, I reject the submission of the defendant recorded above.
SHOULD THE TRIBUNAL OTHERWISE ORDER?
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The judgment for the plaintiff given on 22 August 2017 was for $553,538 plus costs. The Offer of Compromise was for $415,000 exclusive of costs. The plaintiff obtained a judgment on the claim better than the offer for which he would have settled the case i.e. “no less favourable to the plaintiff than the terms of the offer”.
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Unless I am satisfied that this is an exceptional case and that I must avoid substantial injustice, there is no reason to deny the plaintiff the orders he seeks based upon the Offer of Compromise.
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The defendant submits in this regard that the exceptional circumstances and the substantial injustice which would be visited upon the defendant arise from the fact that the plaintiff lost a clearly dominant or severable issue.
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The plaintiff claimed economic loss because his life had been cut short by his disease of mesothelioma, and thus he would lose the receipt of the Commonwealth age pension for his “lost years”. The legal issue which fell for decision was whether or not such a loss was compensable as a matter of law.
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In the judgment delivered on 22 August 2017 I found:
that such a claim was not available to the plaintiff as a matter of law;
in the alternative, if on appeal it was found that such a claim was available as a matter of law, the claim had no value. My reasoning in that regard was set out at paragraphs 171-197 of the judgment.
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I reject the defendant’s submission that the fact that the plaintiff lost the claim for future economic loss (both as a matter of law and as a matter of fact) provides exceptional circumstances or raises substantial injustice, within the meaning of clause 90(2).
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The amount for which the plaintiff offered to settle was less than the damages which I awarded the plaintiff, even without one dollar for future economic loss. In other words, had the defendant accepted the Offer of Compromise, it could have settled the case for an amount which including nothing for future economic loss, and which would have resulted in the defendant paying the plaintiff a figure less than I found he was entitled to for all heads of damage, excluding the claim for future economic loss.
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In those circumstances, the ordinary rule should apply. In short, the defendant could have settled this case for a figure much less than I found the plaintiff was entitled to, even if, as I eventually found, the plaintiff had no claim in law or fact for future economic loss. I am fortified in that conclusion by the fact that the defendant, quite properly, argued the quantum of general damages, loss of expectation of life, and gratuitous attendant care services. In other words, most of the heads of damage on which the plaintiff succeeded were in issue between the parties.
ORDERS
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My orders are:
Order the defendant to pay the plaintiff’s costs assessed on a party and party basis up to and including 23 May 2017.
Order the defendant to pay the plaintiff’s costs on an indemnity basis from and including 24 May 2017.
Order the defendant to pay the plaintiff’s costs of the application for these orders.
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Decision last updated: 10 October 2017
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