Geddes v Taleni (No 2)

[2017] ACTSC 215

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Geddes v Taleni (No 2)

Citation:

[2017] ACTSC 215

Hearing Dates:

On the papers

DecisionDate:

11 August 2017

Before:

Elkaim J

Decision:

In lieu of the costs order made on 24 July 2017, the defendant is to pay the plaintiff’s costs of the whole of the proceedings on a solicitor and client basis.

Catchwords:

TORTS – NEGLIGENCE – Costs – Offer of compromise.

Legislation Cited:

Court Procedure Rules 2006 (ACT) rr 1002 and 1010

Cases Cited:

Calderbank v Calderbank [1975] 3 All ER 333

Geddes v Taleni [2017] ACTSC 183
Innes v Commonwealth of Australia [2017] ACTSC 44

Parties:

Ms Sarah Geddes (Plaintiff)

Mr Tomesina Taleni (Defendant)

Representation:

Counsel

Mr W Sharwood (Plaintiff)

Mr C Purdy (Defendant)

Solicitors

Snedden Hall & Gallop Lawyers (Plaintiff)

Moray & Agnew Lawyers (Defendant)

File Number:

SC 296 of 2015

ELKAIM J:

1. On 24 July 2017, I delivered judgment in this matter (Geddes v Taleni [2017] ACTSC 183).

1. I found in favour of the plaintiff on liability, found there was no contributory negligence and awarded the plaintiff damages in the sum of $408,552. I also ordered the defendant to pay the plaintiff’s costs of the proceedings, but gave the parties leave to make further submissions if a different costs order was sought.

1. The plaintiff made an application for a different costs order. I directed the parties to make submissions in writing on the issue.

1. The order now sought by the plaintiff is that the defendant pay the whole of the plaintiff’s costs assessed on a solicitor and client basis. The entitlement to this order arises from r 1010 of the Court Procedures Rules 2006 (ACT) (the Rules). The rule states:

1010 Offer not accepted and judgment no less favourable to plaintiff

(1) This rule applies if an offer is made by the plaintiff in relation to a claim, but not accepted by the defendant, and the plaintiff obtains an order or judgment on the claim no less favourable to the plaintiff than the terms of the order.

(2) Unless the court orders otherwise, the plaintiff is entitled to an order against the defendant for the plaintiff’s costs in relation to the claim –

(a) If the claim is a personal injury claim – assessed on a solicitor and client basis for the whole of the proceeding; or

(b)In any other case –

(i)      Assessed on a party and party basis up to the time when the costs are to be assessed on a solicitor and client basis under subparagraph (ii); and

(ii)      Assessed on a solicitor and client basis –

(A) If the offer was made before the first day of the trial – from the day the period for acceptance of the offer ends; and

(B)If the offer was made on or after the first day of the trial – at and from 11 am on the day after the offer was made.

1. On 14 November 2016, the plaintiff’s solicitors wrote to the defendant’s solicitors making an offer, pursuant to r 1002 of the Rules, to resolve the matter by way of payment to the plaintiff of $400,000 plus costs. It can be immediately seen that my verdict sum exceeds this amount, although not by much.

1. It is not submitted that the plaintiff’s offer is not a technically valid offer under r 1002. This being so, the straightforward application of r 1010 is that the plaintiff would be entitled to the order that she seeks.

1. Rule 1010 does, however, have a caveat, found in the words “unless the Court orders otherwise….” The defendant has submitted, accepting that he bears the onus, that I should order ‘otherwise’ so that costs will be payable on the ‘normal’ basis, namely a party and party basis.

1. As an alternative, the defendant has submitted that the higher scale should only apply after the date of the offer.

1. The defendant said that I should not make the requested order for one or both of the following reasons:

(a)The judgment sum only marginally exceeded the amount of the offer (calculated at 2.1%).

(b)Changes to the plaintiff’s case made after her offer were such that the quantum of the claim was less than at the time the plaintiff’s offer was made and while it was open to be accepted.

1. I will deal with each point in turn. It is first necessary to observe that a distinction should be made between an offer under the Rules and a Calderbank offer (derived from Calderbank v Calderbank [1975] 3 All ER 333).

1. In my view, a ‘rules’ offer has as its starting point whether or not the plaintiff’s offer has been exceeded by the verdict sum. A Calderbank offer provides greater allowance for the application of discretion, in particular taking into account matters such as those raised by the defendant in this case.

1. The ability of the court to order ‘otherwise’ when considering a Rules offer should only be used in exceptional circumstances. I do not consider that a verdict sum that exceeds the offer by only a small amount, be it 2.1% or even .5%, is an exceptional circumstance. Rule 1010 refers to the result being “no less favourable” than the offer. It says nothing about the degree to which the verdict might exceed the offer. In my view, the degree of difference is not relevant. Accordingly, I reject this part of the defendant’s argument.

1. The submissions concerning the change in the plaintiff’s case had three components. Firstly, it was said that it was not until the “eve of the trial” that the defendant was made aware that the views of Professor Mattick would be challenged. Secondly, it was said that Dr Downing’s data was only received during the trial. Thirdly, it was submitted that the plaintiff’s case had changed by the late introduction into evidence of the plaintiff’s claim for paid maternity leave.

1. The hearing commenced on 17 July 2017. The plaintiff’s submissions revealed that the report of Dr McMahon, plainly challenging Professor Mattick’s views, was served on 22 November 2016. This is well before the “eve”.

1. In his reply to the plaintiff’s written submissions, the defendant’s solicitor conceded the earlier service of Dr McMahon’s report. In regard to the date of service of Dr McMahon’s report, the contents of the written submissions raise a matter that I think deserves comment. The plaintiff’s written submissions refer to the argument from the defendant as being “disingenuous in one respect…” This presumably concerned the date of service of Dr McMahon’s report.

1. The Oxford Online Dictionary defines disingenuous as “not candid or sincere, typically by pretending that one knows less about something than one really does.”  In Innes v Commonwealth of Australia [2017] ACTSC 44, from paragraph [40], I discussed the use of such words and phrases in written submissions. I repeat those observations here. They do not assist a court.

1. As far as Dr Downing’s data is concerned, I do not see it as a material consideration. The contest between the psychologists was well established before the receipt of the data. It arose from the reports of the respective psychologists. It did not arise, nor did my conclusions stem, from the data ultimately provided. I further note that Professor Mattick, having been supplied with Dr Downing’s data, did not change his opinion.

1. An allowance of $31,200 was made in the judgment for the maternity leave that the plaintiff would have received had she stayed at the Australian National University or in a similar position. Had this amount not been included, the offer would not have been exceeded. There is a conceptual difficulty with the defendant’s submission. If the plaintiff had not been pregnant and had not been eligible for maternity leave, then presumably her claim would have been to the full extent of her capacity less any monies actually earned.

1. Considering my conclusion that she was under an incapacity flowing from the accident, her loss would have been greater. The maternity leave allowance was based on 50% of her income.

1. There is another element to the argument. The only offer I am aware of that was made by the defendant is that dated 13 June 2017, offering to settle the matter for $125,000 plus costs. The inclusion of the maternity leave amount would have made no difference.

1. For the reasons just given, I reject the second basis raised by the defendant in opposition to the costs order sought by the plaintiff.

1. I make the following order: In lieu of the costs order made on 24 July 2017, the defendant is to pay the plaintiff’s costs of the whole of the proceedings on a solicitor and client basis.

I certify that the preceding twenty-two [22] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim.

Associate:

Date: 11 August 2017