Evans Shire Council v Richardson (No 2)

New South Wales

Court of Appeal

CITATION:	Evans Shire Council v Richardson (No 2) [2006] NSWCA 61 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	On the papers
JUDGMENT DATE:	3 April 2006
JUDGMENT OF:	Giles JA; Ipp JA; Tobias JA
DECISION:	Application for order refused
CATCHWORDS:	PROCEDURE – costs – application for indemnity costs of trial – Calderbank offer – principles
LEGISLATION CITED:	District Court Rules Part 39 Rule 1B
CASES CITED:	Calderbank v Calderbank [1975] 1 All ER 333 Leichhardt Municipal Council v Green [2004] NSWCA 341 Oshlack v Richmond River Council (1998) 193 CLR 72 SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323
PARTIES:	Evans Shire Council Norman Boyd Richardson
FILE NUMBER(S):	CA 40445/05
COUNSEL:	A: J E Marshall SC / J Thornton R: H N Kelly SC / T McKenzie
SOLICITORS:	A: Phillips Fox, Sydney R: King Cain Solicitors, Bathurst
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 21/02
LOWER COURT JUDICIAL OFFICER:	Murray A-DCJ

CA 40445/05

GILES JA
IPP JA
TOBIAS JA

3 April 2006

EVANS SHIRE COUNCIL v NORMAN BOYD RICHARDSON (No 2)

Judgment on application for indemnity costs

1 THE COURT: The judgment of the Court in this matter on the substantive issues argued on the appeal was delivered on 30 November 2005 when the Court granted the claimant leave to appeal, allowed the appeal, set aside the verdict and judgment of the primary judge in favour of the opponent, and in lieu thereof ordered that there be a verdict and judgment for the claimant.

2 As well as ordering the opponent to pay the claimant’s costs of the appeal, it ordered the opponent to pay the costs of the proceedings at trial. On the application of the claimant’s solicitor, at the time these orders were made, the claimant was granted leave to file submissions in support of an application for indemnity costs of the trial. The Court therefore directed that the claimant file those submissions on or before 6 December 2005, that the opponent’s submissions in reply be filed by 9 December 2005 and that the Court would then determine the issue of indemnity costs on the papers.

3 The claimant’s submissions were duly filed on 6 December 2005 but no submissions in reply were filed on behalf of the opponent. The Court was later informed that the opponent did not wish to file any such submissions.

4 The opponent was successful before the primary judge who found that he was entitled to damages in the sum of $10,100 for injuries sustained on Anzac Day 1999 when he tripped over a mound which, as his Honour held, the claimant had failed to remove in breach of its duty of care when exercising de facto control over the area where the mound was located.

5 The opponent instituted proceedings in the District Court by Ordinary Statement of Claim filed on 24 April 2002 in…