Edwards v Butler (No 2) - [2005] SADC 6

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
EDWARDS v BUTLER (No 2)
Judgment of His Honour Judge Robertson
4 February 2005
PROCEDURE - COSTS
Judgment for damages arising from personal injuries - "Calderbank" letter - Judgment exceeds Calderbank offer - application by Defendant to deny Plaintiff's party and party costs - refusal to consider adequacy of offer in exercise of discretion - application by Defendant for costs on three discrete issues - order that Plaintiff receive party and party costs - order that Defendant receive costs on the discovery issue.
Rule 40 of the District Court Rules 1992, referred to.
Reid v Kerr (1974) 9 SASR 367; Pirrotta v Citibank Ltd (1998) 72 SASR 259; Cretazzo v Lombardi (1975) 13 SASR 4, applied.
Dolan v Australian and Overseas Telecommunications Corporation (1993) 114 ALR 231, considered.

EDWARDS v BUTLER (No 2)
[2005] SADC 6
JUDGE ROBERTSON
CIVIL
Nature of the Applications

On 23 December 2004, judgment was pronounced in favour of the Plaintiff for the sum of $360,681 for damages for personal injuries arising from the Defendant’s breach of contract and negligence. The Plaintiff seeks party and party costs against the Defendant. The Defendant submits that the Plaintiff should be denied her costs or alternatively that there should be some overall reduction of her costs. Further, in the alternative, the Defendant submits that if the Plaintiff is to have her costs then the Defendant is entitled to his costs in respect to three discrete issues upon which the Defendant submits he was successful.
Relevant principles
In the case of a successful party to litigation, the ordinary rule is that such a party receives party and party costs. This principle is embodied in Rule 101.02 of the District Court Rules 1992 (“the Rules of Court”) which provides that “costs to follow the event unless otherwise ordered”.(See also Pirrotta v Citibank Ltd (1998) 72 SASR 259 at 264.)Whilst this is the ordinary rule the discretion of a Court to award costs is unfettered.
First submission – Issue of the Calderbank Letter
The Trial commenced on 6 November 2003. By letter dated 5 November 2003 and faxed to the Solicitors for the Plaintiff, the Defendant offered to resolve the Plaintiff’s claim by payment of the sum of $350,000 inclusive of interest plus costs and disbursements. The informal offer was contained in a letter which is often described as a “Calderbank letter” (sometimes herein called “the Calderbank offer”).
Mr Livesey, Counsel for the Defendant, submitted that despite Judgment for the Plaintiff exceeding the amount of the offer, the proximity of the amount of Judgment to the offer is a relevant factor in the exercise of the discretion to award costs. As an extension of that submission, Mr Livesey submitted that because of the circumstances prevailing at the time of the offer in that there were complex issues of facts and law, including a difficult liability issue, the Defendant’s offer was adequate. He submitted that, expressed another way, it was unreasonable…

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 Edwards v Butler (No 2)

Details

AGLC: Edwards v Butler (No 2) [2005] SADC 6
Case: [2005] SADC 6
Decision Date: 4 February 2005

CaseChat Overview and Summary

In the case of Edwards v Butler (No 2), the court was tasked with determining the allocation of costs in a personal injury case. The Plaintiff, Edwards, had successfully sued the Defendant, Butler, for damages related to personal injuries. The dispute centred around the appropriateness of costs orders in light of a "Calderbank" letter, which is a formal offer to settle the case that is made without admission of liability. The offer in question exceeded the judgment amount awarded to the Plaintiff.

The primary legal issue before the court was whether the Defendant's application to deny the Plaintiff's party and party costs should be granted, considering the Defendant's refusal to consider the adequacy of the Calderbank offer during the exercise of the court's discretion. Additionally, the court needed to determine if the Defendant was entitled to costs on three discrete issues, including the discovery process. The court meticulously examined the circumstances surrounding the Calderbank offer and the proceedings leading to the judgment, alongside the relevant legal principles guiding cost allocation.

After careful consideration, the court ruled that the Plaintiff was entitled to receive party and party costs, thereby rejecting the Defendant's application to deny these costs. The court found that the refusal to consider the adequacy of the Calderbank offer did not justify denying the Plaintiff's costs. However, the court did allow the Defendant's application for costs on the discovery issue, reflecting a balanced approach to the allocation of costs. This nuanced decision underscores the court's careful consideration of the procedural context and the legal framework governing cost orders.

Orders