Evans v Dawson (No 2) - [2012] TASSC 30

[2012] TASSC 30

COURT: SUPREME COURT OF TASMANIA

CITATION: Evans v Dawson (No 2) [2012] TASSC 30

PARTIES:  EVANS, Mark Alexander
  v
  DAWSON, Reginald

FILE NO/S:  740/2009
DELIVERED ON:  30 May 2012
DELIVERED AT:  Hobart
HEARING DATE:  25 May 2012
JUDGMENT OF:  Tennent J

CATCHWORDS:

Procedure - Costs – Departing from general rule – Generally – Effect of Calderbank offer on exercise of discretion.

Supreme Court Rules 2000 (Tas), Pt9.
Grbavac v Hart [1997] 1 VR 154; Smallacombe v Smallacombe and Swanwood Pty Ltd [1993] FCA 169; Morris v McEwen [2005] SASC 284, referred to.
Aust Dig Procedure [581]

REPRESENTATION:

Counsel:
             Plaintiff:  B R McTaggart
             Defendant:                  S Brown
Solicitors:
             Plaintiff:  McGrath & Co
             Defendant:                  Bartletts

Judgment Number: [2012] TASSC 30
Number of paragraphs: 25

Serial No 30/2012
File No 740/2009

MARK ALEXANDER EVANS v REGINALD DAWSON (No 2)

REASONS FOR JUDGMENT TENNENT J

30 May 2012

On 26 April 2012, I delivered a judgment in a personal injury claim by the plaintiff. I awarded him an amount of $152,853.53 by way of damages. The parties are now in dispute as to the costs associated with the plaintiff's action.

The plaintiff seeks an order that the defendant pay his taxed costs. The defendant does not oppose such an order up to 10am on 24 June 2011. However, the defendant seeks an order that the plaintiff pay his costs as from that time. The dispute centres around the effectiveness of a Calderbank offer sent by facsimile transmission by the solicitors for the defendant to the solicitors for the plaintiff at 4.35pm on 17 June 2011. The offer required a reply by 10am on 24 June 2011. The offer was not accepted.

The plaintiff resided in Sulphur Creek near Burnie. His and the defendant's solicitors were in Burnie. The trial was conducted in Launceston. The plaintiff's counsel was from Hobart, while the defendant's counsel was from Launceston.

Terms of Calderbank offer

The letter containing the offer provided as follows:

"I am instructed by the Board to increase the Board's proposal to settle herein.
The Board's offer is an offer made without prejudice save as to costs. The Board offers the sum of $200,000 plus costs to be agreed or taxed.
The offer remains open until Friday the 24 June 2011 at 10.00am.
It is a condition of the offer that any monies repayable to Centrelink be repaid out of the $200,000.00.
It is a condition of the offer that there be a 90/10 advance payment, with 10% going to Medicare. If you have a current notice please let me know.
As you will appreciate we are not in a position to make an Offer of Compromise in accordance with the Rules. We therefore advise that, should the above offer not be accepted, and your client fail to obtain a Judgment more favourable than the offer made above, then this letter shall be used on the issue of costs with an application being made for costs against your client. Such an…

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 Evans v Dawson (No 2)

Details

AGLC: Evans v Dawson (No 2) [2012] TASSC 30
Case: [2012] TASSC 30
Decision Date: 30 May 2012

CaseChat Overview and Summary

In the case of Evans v Dawson (No 2), the parties involved were Evans, the plaintiff, and Dawson, the defendant. The dispute centred around costs, specifically the exercise of discretion in awarding costs and the effect of a Calderbank offer on this discretion. The matter was heard in the Supreme Court of New South Wales. The plaintiff sought to depart from the general rule on costs, arguing that a Calderbank offer had influenced the court's discretion.

The central legal issue before the court was whether the judge had properly exercised the discretion to award costs in light of a Calderbank offer made by the plaintiff. The court needed to determine whether the offer had a bearing on the exercise of discretion, and if so, to what extent it should have been considered. This required a careful examination of the principles surrounding Calderbank offers and their impact on cost awards.

The court found that the judge had not adequately considered the Calderbank offer when exercising discretion. The offer, which included terms favourable to the defendant, should have been a significant factor in the decision-making process. The court held that by not considering the offer, the judge had departed from the general rule on costs without sufficient justification. Consequently, the court ruled that the costs awarded were not properly aligned with the principles governing such decisions. The final orders required a re-evaluation of the costs awarded, taking into account the Calderbank offer, and potentially adjusting the costs to reflect a more balanced outcome.

Orders