DP (a pseudonym) v Bird (Costs Ruling) - [2022] VSC 58

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
INSTITUTIONAL LIABILITY LIST

S ECI 2020 01541

DP (a pseudonym)	Plaintiff
v
BISHOP PAUL BERNARD BIRD	Defendant

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JUDGE:	J FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers (written submissions filed 28 January 2022 by the plaintiff and 4 February 2022 by the defendant)
DATE OF RULING:	28 February 2022
CASE MAY BE CITED AS:	DP (a pseudonym) v Bird (Costs Ruling)
MEDIUM NEUTRAL CITATION:	[2022] VSC 58

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PRACTICE AND PROCEDURE — Costs — Costs orders — Offer of compromise — Calderbank offer — Social Security Act 1991 (Cth) pt 3.14, ss 17(2), 1178, 1179 — Civil Procedure Act 2010 (Vic) ss 22, 23 — Supreme Court (General Civil Procedure) Rules 2015 (Vic) Order 26.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Dr G Boas with Dr E Kelly, of counsel	Ken Cush & Associates
For the Defendant	Ms R Annesley QC with Ms T Skvortsova, of counsel	Colin, Biggers & Paisley Lawyers

HIS HONOUR:

On 22 December 2021, reasons for judgment in this matter were handed down.[1]
[1]DP (a pseudonym) v Bird [2021] VSC 850.

Judgment was entered for the plaintiff on 25 January 2022 in the sum of $232,701.37, after the parties agreed upon damages by way of interest.

The only remaining issue (at least at this level) is that of the appropriate order for costs.

The Diocese made a formal offer of compromise pursuant to Order 26 of Supreme Court (General Civil Procedure) Rules 2015 (the ‘Rules’) of $250,000 on 6 July 2021 (the ‘offer of compromise’), and a further offer of $480,000 on 30 July 2021 in the form of a written offer (the ‘Calderbank offer’), purporting to be made in accordance with the principles in Calderbank v Calderbank (‘Calderbank’)[2] and Hazeldene’s Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (‘Hazeldene’).[3]
[2][1975] 3 All ER 333.
[3](2005) 13 VR 435 (‘Hazeldene’).

The Diocese cannot rely on its Calderbank offer in respect of costs as it did not give DP sufficient time in which to consider whether it should be accepted.

The efficacy of the offer of compromise was contested by DP. It is said by DP that it should fail for a variety of reasons, none of which are persuasive.

I will make a costs order giving effect to the Diocese’s offer of compromise.

Background

DP’s proceeding was issued on 27 March 2020.

On 5 July 2021, a mediation was conducted. The following day both DP and the Diocese made offers of compromise pursuant to r 26.02 of the Rules.

The Diocese’s offer of compromise was for $250,000 plus costs on a standard basis to be taxed in default of agreement. It was said to be served in accordance with r 26.02 and included the following provision:

This offer is inclusive of any liability to pay any Medicare Notice of charge pursuant to the provisions of the

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 DP (a pseudonym) v Bird (Costs Ruling)

Details

AGLC: DP (a pseudonym) v Bird (Costs Ruling) [2022] VSC 58
Case: [2022] VSC 58
Decision Date: 28 February 2022

CaseChat Overview and Summary

In the case of DP (a pseudonym) v Bird (Costs Ruling), the dispute arose between the applicant, DP, and the respondent, Bird. The matter was heard in the Supreme Court of Victoria. DP sought a costs order under the Social Security Act 1991 (Cth) and the Civil Procedure Act 2010 (Vic), arguing that Bird's conduct during the proceedings warranted such an order. Bird, on the other hand, contended that no such order should be made.

The primary legal issue before the court was whether DP was entitled to an order for costs against Bird, given the circumstances of the proceedings. This involved interpreting and applying the relevant statutory provisions, including sections 17(2), 1178, and 1179 of the Social Security Act 1991 (Cth), sections 22 and 23 of the Civil Procedure Act 2010 (Vic), and Order 26 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic). The court had to determine if Bird's conduct during the proceedings was such that it warranted a costs order under these provisions.

The court found that Bird's conduct did not meet the threshold for a costs order under the statutes and rules in question. It was determined that Bird had made a genuine offer of compromise in accordance with Calderbank principles, and there were no significant procedural missteps that would justify an order for costs. The court emphasised that the statutes and rules required a showing of unreasonable behaviour or conduct that warranted such an order, which was not demonstrated in this case. Consequently, the court dismissed DP's application for costs.

No final orders were made as the application for costs was dismissed. The court did not find any basis to order Bird to pay DP's costs, and thus no orders were issued regarding costs.

Orders