Hendrie v Rusli
[2000] WASCA 420
•21 DECEMBER 2000
HENDRIE -v- RUSLI [2000] WASCA 420
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 420 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:81/1999 | 13 DECEMBER 2000 | |
| Coram: | MURRAY J | 21/12/00 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Special costs order not made | ||
| PDF Version |
| Parties: | MARIE HENDRIE ANAWATI RUSLI |
Catchwords: | Costs Variation of award of damages Ultimate award did not exceed offer to settle made before trial or offer made before appeal heard Whether special order as to costs should be made |
Legislation: | Rules of Supreme Court O 24A |
Case References: | Calderbank v Calderbank [1976] Fam 93 Dobb v Hacket (1993) 10 WAR 532 Hendrie v Rusli [2000] WASCA 249 Sloane v McDonald & Sutherland, unreported; FCt SCt of WA; Library No 980012; 22 January 1998 Ettinghausen v Australian Consolidated Press Ltd (1995) 38 NSWLR 404 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : HENDRIE -v- RUSLI [2000] WASCA 420 CORAM : MURRAY J HEARD : 13 DECEMBER 2000 DELIVERED : 21 DECEMBER 2000 FILE NO/S : FUL 81 of 1999 BETWEEN : MARIE HENDRIE
- Appellant (Plaintiff)
AND
ANAWATI RUSLI
Respondent (Defendant)
Catchwords:
Costs - Variation of award of damages - Ultimate award did not exceed offer to settle made before trial or offer made before appeal heard - Whether special order as to costs should be made
Legislation:
Rules of Supreme Court O 24A
Result:
Special costs order not made
(Page 2)
Representation:
Counsel:
Appellant (Plaintiff) : Mr K J Bradford
Respondent (Defendant) : Mr J R Brooksby
Solicitors:
Appellant (Plaintiff) : Bradford & Co
Respondent (Defendant) : Greenland Brooksby
Case(s) referred to in judgment(s):
Calderbank v Calderbank [1976] Fam 93
Dobb v Hacket (1993) 10 WAR 532
Hendrie v Rusli [2000] WASCA 249
Sloane v McDonald & Sutherland, unreported; FCt SCt of WA; Library No 980012; 22 January 1998
Case(s) also cited:
Ettinghausen v Australian Consolidated Press Ltd (1995) 38 NSWLR 404
(Page 3)
1 MURRAY J: The appellant sued for damages in negligence, liability was admitted by the respondent, and the assessment of damages was tried in the District Court. On 28 May 1999 the trial Judge gave judgment for the appellant in the sum of $133,586.10.
2 As I understand the position, prior to trial, the parties had agreed the special damages in the sum of $65,434.10, that, having regard to the appellant's age and her remunerative activities, an award of $2,000 should be made for past and future economic loss, and that an award of $20,365 should be made for future medical expenses. The total of the amounts which were not in contention between the parties was therefore the sum of $87,799.10. The sum of $45,787, which was the balance of the award made by the trial Judge comprised $42,400 for general damages of a non-pecuniary kind, and an amount of $3,387 awarded for what were described as future professional services. The trial Judge rejected the appellant's claim for an award in respect of past gratuitous services and interest upon any sum so awarded, and for future gratuitous services.
3 Prior to trial the appellant had offered to accept judgment in the sum of $185,000 net of the amount of agreed special damages. The defendant made a counter offer to settle the action by payment of the sum of $140,000. There is no doubt, in my opinion, that that was an offer to pay $140,000 net of the agreed special damages. As can be seen, the amount achieved by the appellant upon the assessment of the trial Judge was $68,152 net of special damages, well short of both the offer and the counter offer to which I have referred. The trial Judge therefore awarded the costs of the action to the appellant to 25 March 1999, the day after the respondent's counter offer. Thereafter the costs of the action were awarded to the respondent.
4 The appeal against that judgment challenged the adequacy of the award of $42,400 for non-pecuniary general damages, the award of $3,387 for future professional services and the failure of the trial Judge to make any award for past or future gratuitous services. The appeal succeeded. No change was made to the assessment of non-pecuniary general damages which the trial Judge had assessed at 20 per cent of "a most extreme case", although this Court described the assessment as "modest". However, as to the balance of the appellant's claims, this Court concluded that the exercise of discretionary judgment by the trial court had miscarried and the award was varied. The amount of $3,387 assessed in respect of future professional services was increased to $14,225. An award calculated at $8,938 was made for past gratuitous services together with interest calculated at $495. For future gratuitous services an award
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- of $17,800 was made. The effect then was to increase the judgment for the appellant by the sum of $38,071 to a total amount of $171,657.10, again, inclusive of the special damages which had been agreed, and including the agreed amounts for past and future economic loss and future medical expenses.
5 After the appeal was instituted, the solicitors for the respondent wrote to the solicitors for the appellant offering to settle her claim by a payment of the sum of $176,475.66, an amount approximately $5,000 above the final judgment for the appellant achieved on the hearing of the appeal. That offer was declined. It included an offer of $50,000 in respect of non-pecuniary general damages, no change in the $3,387 awarded in respect of future professional services, and an offer to make payments for past gratuitous services (and interest thereon) and future gratuitous services, all of which exceeded the amounts finally recovered by the judgment substituted by this Court. In the final analysis then, the appellant could have settled her claim for something over $205,000 before trial, and for somewhat better than $176,000 after trial, whereas in the end she recovered just over $171,000.
6 The appellant now moves for the costs of the trial on the ground that there was a lack of clarity as to whether the offer of $140,000 by the respondent was net of the agreed special damages, and so it is put that it was reasonable to decline to accept that offer and to go on to trial. The appellant also moves for the costs of the appeal, again on the ground that she came close to achieving the offer made after trial and she had reasonable prospects, so it is argued, of achieving more, particularly if this Court had seen fit to amend the basis of the assessment of non-pecuniary general damages by increasing the percentage of a most extreme case upon which the assessment is based, in any substantial way. On the other hand, for the respondent it is argued that he should have the costs of the appeal.
7 The coram of the Full Court which heard the appeal has referred the questions thus raised for my decision.
8 In my opinion the respondent's offer of compromise made before trial purported to be, and was accepted by the trial Judge to be, made pursuant to the Rules of the Supreme Court, O 24A r 1 and r 2. I was not told that the offer was expressed to be open for a limited period and so, having regard to when it was made in relation to the time of the trial, it was open to be accepted virtually to that time. If there was any doubt in the mind of the appellant or her legal advisers as to how the offer was to
(Page 5)
- be interpreted, it was open to discuss that with the respondent's solicitors and, if necessary, ask that the terms of the offer be amended. However, I think it was understood and was considered as an offer net of the agreed special damages. In the event, the orders in respect of costs were in the form to which the respondent was entitled pursuant to O 24A r 10(5). In my opinion, nothing has been shown by the appellant to justify any change in the orders so made.
9 In Sloane v McDonald& Sutherland, unreported; FCt SCt of WA; Library No 980012; 22 January 1998 this Court held that, as is clear from the terms of O 24A, the procedure it offers has no application to judgments varied on appeal, but is only applicable to costs at first instance, although the terms of these rules may have an effect upon the order made as to the costs at first instance by the Full Court. As the Court recognised in Sloane, it is always open to a party to do as the respondent did in this case, and to make informally an offer of compromise of the kind contemplated by O 24A, which offer may affect the discretion of the Full Court in respect of the costs of the appeal although, in a case such as this, where the offer is not exceeded by the judgment as varied on appeal, the party concerned does not have the benefit of a prima facie entitlement to costs after the making of the offer under any rules such as O 24A r 10(5).
10 In Dobb v Hacket (1993) 10 WAR 532, in discussing the effect on the exercise of the discretion as to costs of the making of an informal offer of compromise (known as a Calderbank offer after the decision which first recognised its efficacy; Calderbank v Calderbank [1976] Fam 93), I said at 540:
"The court should preserve in the minds of litigants the conscious consideration that their behaviour may place them at risk as to costs if they refuse reasonable offers of settlement. The court should be careful not to foster the proposition that obstinacy and unreasonableness will not be punished by orders as to costs. Such considerations foster the public interest in the desirability, not only from the point of view of the particular litigants in the case in question, but from the point of view of litigants generally, of the court so behaving as to encourage the achievement of reasonable and timely settlements."
11 Ordinarily costs will follow the event unless for such a reason as the unreasonable refusal of an offer of compromise, the successful litigant should be deprived of his or her costs, in whole or in part, which may lead
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- to no order as to costs being made or an order that, although successful, the litigant in question should not only bear his or her own costs, but should pay the costs of the unsuccessful party.
12 However, in this case, in my opinion, the matter does not reach that point. On appeal, the appellant succeeded in obtaining a substantial increase in the damages awarded. Certainly she did not improve upon the offer of settlement made by the respondent, but she came very close, and in my opinion it was not unreasonable that she should decline to accept that offer and should press on to the hearing of the appeal.
13 The major part of the award of damages at first instance which was challenged, was that dealing with the assessment of non-pecuniary general damages by the process of determining an appropriate percentage of the prescribed amount for a most extreme case, which is now the method of assessment imposed by law in a case such as this. It is well recognised that there is a very substantial element of discretionary judgment involved in such a process of assessment. That circumstance is referred to in the reasons of the Full Court during the discussion of this issue: Hendrie v Rusli [2000] WASCA 249; 8 September 2000 at par [18]. In my view it was not unreasonable for the appellant to seek the determination of the Full Court upon her contention that in choosing the figure of 20 per cent as the basis for his assessment, the discretion of the trial Judge miscarried.
14 In my view, therefore, the respondent should pay the appellant's costs of the appeal to be taxed and I would so order.
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