Eliiott v Age Company Limited

[2006] VSC 358

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
MAJOR TORTS LIST

No. 7717  of  2005

HERBERT ELLIOTT	Plaintiff
v
THE AGE COMPANY LTD	Defendant

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JUDGE:	BONGIORNO J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 October 2006
DATE OF JUDGMENT:	10 October 2006
CASE MAY BE CITED AS:	Elliott v The Age
MEDIUM NEUTRAL CITATION:	[2006] VSC 358

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Costs – offer of compromise  - offer within short time of trial – time to obtain legal advice reasonable – 10 days – RSC r 26.03 (7).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr W. Houghton of Queens Counsel with  Ms G. Schoff of Counsel	Wisewoulds
For the Defendant	Dr T McEvoy of Counsel	Minter Ellison Lawyers

HIS HONOUR:

1. In this matter, the court has been informed that the plaintiff has accepted an offer of compromise which was filed and served in accordance with the rules

   
   

   on 22 September 2006, but at such a time as to deem it served on 25 September 2006.  That is to say, it was served after four o'clock in the afternoon.  The plaintiff now seeks an order that his costs - the costs to which he would be entitled upon acceptance of the offer of compromise - should be taxed up to yesterday, which was 9 October 2006.  The defendant says that RSC r 26.03(7) dictates that unless the court otherwise orders, the costs should be taxed only up until the date of the offer of compromise.  That is to say, 25 September 2006. 

1. Mr Houghton, of counsel for the plaintiff, submitted that his client should have been entitled to take legal advice in respect of the offer of compromise, and said that that means that he ought to be entitled to his costs beyond the date upon which it was made. Counsel for the defendant says, effectively, to the contrary.

1. In the circumstances I accept Mr Houghton's argument that the plaintiff is entitled and should be entitled to obtain legal advice on the quantum of the offer which has been made, and as to the propriety of settling the case on those terms.  The question becomes one as to what is a reasonable time during which that advice could be given.  It may sound like nit-picking, but in my opinion ten days seems to me to be a reasonable time to obtain that advice, and accordingly I propose that the plaintiff's costs be taxed up to and including 5 October 2006.  I order that the defendant pay the plaintiff's costs, pursuant to RSC r 26.03(7), taxed up to and including 5 October 2006.  There will be no need for any other orders.