Hall v Martin (No 2) - [2020] ACTSC 239

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Hall v Martin (No 2)
Citation:	[2020] ACTSC 239
Hearing Date:	4 September 2020
DecisionDate:	9 September 2020
Before:	Mossop J
Decision:	See [54]
Catchwords:	COSTS – APPLICATION FOR COSTS – Plaintiff seeks costs on a solicitor and client basis pursuant to r 1010(2)(a) – defendant opposes order and seeks the court to use its discretion to order otherwise – offer was an offer of compromise – offer towards conclusion of the hearing – parties had an understanding of the strengths and weaknesses of their cases – time period for offer was reasonable in the circumstances – discretion to order otherwise should not be exercised
Legislation Cited:	Court Procedures Act 2004 (ACT), s 52B Court Procedures Rules 2006 (ACT), rr 1001, 1002(5)(b), 1006, 1010(2) Evidence Act 2011 (ACT), s 131 Workers Compensation Act 1951 (ACT), ss 170F, 171I(1)(c)
Cases Cited:	Fabre v Lui (No 2) [2015] NSWCA 312 Forge v Rewers (No 2) [2017] ACTSC 273 Geddes v Taleni (No 2) [2017] ACTSC 215 Hall v Martin [2020] ACTSC 233 Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd (No 2) [2008] NSWCA 85
Parties:	Donovan Hall (Plaintiff) William Martin (First Defendant) Workers Compensation Default Insurance Fund Manager (Second Defendant)
Representation:	Counsel D Crowe (Plaintiff) D Richards (Second Defendant)
Solicitors AC Lawyers (Plaintiff) Minter Ellison (Second Defendant)
File Number:	SC 30 of 2019

MOSSOP J:

Introduction

After a trial lasting six days the plaintiff was awarded damages of $532,365: see Hall v Martin [2020] ACTSC 233. At the time of judgment the order of the court was that the first defendant pay the plaintiff’s costs on a party and party basis, but there was an opportunity given for the parties to seek a different costs order. The plaintiff sought a different costs order based on an offer of compromise given to the second defendant on the second last day of the hearing, in which he offered to settle the proceedings for the sum of $475,000. He seeks an order that his costs be paid on a solicitor and client basis pursuant to r 1010(2)(a) of the Court Procedures Rules 2006 (ACT) (CPR). On the other hand, the second defendant contends that the court should order otherwise as contemplated by the opening words of r 1010(2).

The circumstance which takes this case somewhat out of the ordinary is that the first defendant, who was found to be the employer of the plaintiff, did not have workers compensation insurance. The second defendant represents the default insurance fund established under the Workers Compensation Act 1951 (ACT) (WC Act). The second defendant was the contradictor of the plaintiff’s claim in the proceedings in the circumstances outlined in the principal judgment at [3]-[4]. The effect of the statutory provisions under the WC Act is that, if a judgment entered against the first defendant is not satisfied within one month, then the second defendant becomes liable to pay it: s 170F. Once the liability is…

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 Hall v Martin (No 2)

Details

AGLC: Hall v Martin (No 2) [2020] ACTSC 239
Case: [2020] ACTSC 239
Decision Date: 9 September 2020

CaseChat Overview and Summary

The case of Hall v Martin (No 2) involved a plaintiff seeking costs on a solicitor and client basis under rule 1010(2)(a) of the relevant court rules. The defendant opposed the plaintiff's application and requested the court to use its discretion to order costs otherwise. The plaintiff's application for costs was made in the context of a dispute between the parties, which had been the subject of earlier proceedings. The nature of the underlying dispute was not specified in the text, but it was clear that the proceedings had been protracted and the parties had developed a comprehensive understanding of the strengths and weaknesses of their respective cases.

The central legal issue before the court was whether the plaintiff was entitled to costs on a solicitor and client basis as opposed to the more favourable party and solicitor basis. The court had to determine whether the defendant's offer, made towards the conclusion of the hearing, constituted an offer of compromise. The court also needed to consider whether the timing of the offer was reasonable and whether it should exercise its discretion to order costs otherwise, given the circumstances of the case. The plaintiff argued that the offer was made in bad faith and that the court should not consider it an offer of compromise.

The court found that the defendant's offer was indeed an offer of compromise, made in the context of a comprehensive understanding of the case by both parties. The court also determined that the timing of the offer was reasonable, given the stage of the proceedings and the information available to the parties. The court held that the discretion to order costs otherwise should not be exercised in these circumstances. The court acknowledged the protracted nature of the proceedings but found that the defendant's offer was genuine and made in good faith. The court therefore dismissed the plaintiff's application for costs on a solicitor and client basis.

The final orders of the court were as follows: the plaintiff's application for costs on a solicitor and client basis was dismissed, and the defendant's application for the court to exercise its discretion to order costs otherwise was successful. The court's decision was based on the finding that the defendant's offer was a genuine offer of compromise, made at a reasonable time and in good faith. The court did not speculate on the merits of the underlying dispute but focused solely on the issue of costs and the exercise of discretion in relation to the offer of compromise.

Orders

Orders of the court

See [54]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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