Gray v Wagga Wagga City Council (No 2)

[2021] NSWDC 196

District Court

New South Wales

Medium Neutral Citation:

Gray v Wagga Wagga City Council (No 2) [2021] NSWDC 196

Hearing dates:

In chambers

Date of orders:

25 May 2021

Decision date:

25 May 2021

Jurisdiction:

Civil

Before:

M Sidis ADCJ

Decision:

(1) The plaintiff is to pay the defendant’s costs of the proceedings on an ordinary basis up to and including 11 February 2021 and on an indemnity basis thereafter.

Catchwords:

COSTS - offers of compromise made at separate times - deterrent effect - late production of documents not an exceptional circumstance.

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), rr 20.26 and 42.15A

Cases Cited:

Calderbank v Calderbank [1975] 3 All ER 333

Gray v Wagga Wagga City Council [2021] NSWDC 108

Hillier v Sheather (1995) 36 NSWLR 414

Leichhardt Municipal Council v Green [2004] NSWCA 341

Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72

South Eastern Sydney Area Health Service v King [2006] NSWCA 2

Vagg v McPhee (No 2) [2012] NSWSC 187

Category:

Costs

Parties:

Plaintiff: Shannon Gray
Defendant: Wagga Wagga City Council

Representation:

Counsel:
Plaintiff: Mr C Hart
Defendant: Ms J Chapman

Solicitors:
Plaintiff: Slater and Gordon Lawyers
Defendant: Moray & Agnew

File Number(s):

2020/00072845

Publication restriction:

Nil

Judgment

1. The plaintiff, Shannon Gray, claimed that she suffered injury at Wagga Wagga City Airport on 21 September 2017 when an automatically opening door in the arrivals area of the airport closed and struck her as she passed through an arrivals gate.  She alleged breach by the defendant of its duty of care to her as occupier and controller of the airport.

2. On 7 April 2021 I published my reasons for dismissing the plaintiff’s claim: Gray v Wagga Wagga City Council [2021] NSWDC 108. Order 3 provided for the parties to apply to put before the Court submissions concerning the appropriate order to be made for the payment of the costs of the proceedings.

3. I have now received submissions from each party concerning the consequences which are to follow from the service upon the plaintiff by the defendant of two offers of compromise under UCPR 20.26. The first of those offers was served on 3 April 2020; the second was served on 11 February 2021. The offers were expressed in identical terms that provided for:

1. Judgment for the defendant; and

2. No order as to costs.

4. The plaintiff did not accept either offer and the defendant secured an order in the proceedings that was no less favourable than the terms of the offers.

5. In its submissions the defendant sought an order for its costs on an ordinary basis up to 3 April 2020 and on an indemnity basis from 4 April 2020; or, alternatively, on an ordinary basis up to 11 February 2021 and on an indemnity basis from 12 February 2021.

6. The plaintiff did not dispute that the offers complied with the requirements of UCPR 20.26. It was submitted on her behalf that there were exceptional circumstances that warranted an order that each party pay its own costs.

7. The defendant’s entitlement to indemnity costs is provided for in UCPR 42.15A which, relevantly, provides:

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

2. Unless the court orders otherwise-- 

1. the defendant is entitled to an order against the plaintiff for the defendant's costs in respect of the claim, to be assessed on the ordinary basis, up to the time from which the defendant becomes entitled to costs under paragraph (b), and 

2. the defendant is entitled to an order against the plaintiff for the defendant's costs in respect of the claim, assessed on an indemnity basis-- 

1. if the offer was made before the first day of the trial, as from the beginning of the day following the day on which the offer was made, …

8. The principles that apply to the exercise of discretion in determining issues raised of costs may be summarised as follows:

1. As a basic general rule, a successful party to litigation is entitled to an order for costs against the unsuccessful party.

2. Where an offer of settlement is made on the basis of Calderbank v Calderbank [1975] 3 All.ER 333, the onus is on the successful party to establish that the unsuccessful party acted unreasonably in failing to accept the offer.

3. Where an offer of compromise is made in accordance with UCPR 20.26, the onus is on the unsuccessful party to establish that the Court should not follow the procedure provided for in UCPR 42.15A: Vagg v McPhee (No 2) [2012] NSWSC 187.

4. Instances where, as a matter of justice, a departure from the Rule may be warranted are:

1. Litigation that involves public interest considerations: Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72;

2. The presence of exceptional circumstances: Vagg; South Eastern Sydney Area Health Service v King [2006] NSWCA 2.

5. The purpose of the rules relating to offers of compromise is to encourage early settlement of proceedings rather than to use those rules to deter a party from continuing proceedings that ostensibly have merit.

6. An offer to walk-away or one that requires complete capitulation can qualify as a genuine offer of compromise: Vagg; Leichhardt Municipal Council v Green [2004] NSWCA 341.

7. Circumstances that make it difficult to assess chance and risk at the time of receipt of the offer are insufficient to warrant departure from the Rule: Hillier v Sheather (1995) 36 NSWLR 414.

The Offer of 3 April 2020

9. The proceedings in this matter were commenced on 6 March 2020 and the first offer of compromise was served 28 days later, before the plaintiff had the opportunity to embark upon the investigatory processes available to her as a consequence of the commencement of litigation.

10. The letter that accompanied the offer made no reference to the elements of the defence that provided the defendant with sufficient confidence in its position to warrant an offer that effectively required the plaintiff to abandon her claim.

11. An offer made at this early stage of the proceedings indicated an intention to deter rather than compromise the proceedings. I concluded that in those circumstances a departure from UCPR 42.15A was warranted.

The Offer of 11 February 2021

12. Circumstances were different when the second offer was made. The proceedings had been listed for hearing, presumably, on the basis that the parties had finalised their evidence and were ready to proceed. Further, the letter that accompanied the offer set out in moderate detail the defendant’s response to the claim in terms that were substantially supported by my findings.

13. In resisting an order for costs of any kind, the plaintiff raised issues relating to signage, aspects of the defence that were decided against the defendant and the late production of documents.

14. I was uncertain why the plaintiff was concerned with questions of signage in the light of my findings that a warning sign, even if provided, would not have altered the outcome of the proceedings.

15. I did not accept that I should deny the defendant its right to costs because I found against it on the issues of contributory negligence and obvious risk. They were defences that were legitimately available to the defendant.

16. The major aspect of the plaintiff’s submissions related to the production by the defendant of further documents on 15 March 2021, the first day of the hearing, and after the period for acceptance of the second offer expired.

17. The documents of particular concern to the plaintiff were a report that followed an inspection of the automatic door on 13 June 2017 (Ex A.90A) and a quotation for repair dated 19 July 2017 (ExA.90B). Until these documents were produced the plaintiff was under the apprehension that, in breach of the relevant Australian standard, the defendant failed to conduct regular maintenance inspections between February 2017 and September 2017 when the incident occurred.

18. The plaintiff’s submissions referred on multiple occasions to the suggestion that the documents were ‘withheld’ by the defendant. Although it was regrettable that they were not provided at an earlier date, the circumstances leading to their late disclosure were not made apparent during the trial. I was not, therefore, in a position to determine if the non-production of the documents was deliberate or the result of oversight.

19. The plaintiff was incorrect in claiming that I directed criticism at the defendant’s witnesses because of my concern that the defendant withheld documents. My criticism addressed the absence of explanation for the failure to attend to repairs to the automatic doors.

20. The plaintiff was also incorrect in contending that these documents ultimately led to the outcome that favoured the defendant. These documents reported the same defect in the doors that was first identified in June 2016 and consistently reported to the defendant in the regular inspections that followed. It was a defect of which the plaintiff ought to have been aware from documents produced in February 2018.

21. The plaintiff correctly recognised that her claim failed because, although a defect was identified, it was not established that the defect caused her injury. Regardless of the production of the documents relating to the June 2017 inspection, it ought to have been apparent at the time of service of the second offer that evidence was necessary to prove a causal connection between the defect and the injury.

22. I did not accept that, in the case of the second offer, there were exceptional circumstances that warranted departure from UCPR 42.15A.

ORDER

1. The plaintiff is to pay the defendant’s costs of the proceedings on an ordinary basis up to and including 11 February 2021 and on an indemnity basis thereafter.

Decision last updated: 25 May 2021