Insurance Commission of Western Australia v Weatherall
[2007] WASCA 264 (S)
•4 DECEMBER 2007
INSURANCE COMMISSION OF WESTERN AUSTRALIA -v- WEATHERALL [2007] WASCA 264 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASCA 264 (S) | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:93/2005 | 14 JUNE 2007 | |
| Coram: | McLURE JA PULLIN JA BUSS JA | 3/12/07 | |
| 19/12/07 | |||
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Orders made | ||
| B | |||
| PDF Version |
| Parties: | INSURANCE COMMISSION OF WESTERN AUSTRALIA ALISON HARMIONI WEATHERALL |
Catchwords: | Costs Whether O 24A offer made in District Court proceedings applies to costs of appeal Whether appeal judgment operates retrospectively |
Legislation: | Rules of the Supreme Court 1971 (WA), O 24A r 10 |
Case References: | Elvidge Pty Ltd v BGC Construction Pty Ltd [2006] WASCA 264 (S) Insurance Commission of Western Australia v Weatherall [2007] WASCA 264 Kschammer v R W Piper & Sons Pty Ltd [2003] WASCA 298 (S) Oshlack v Richmond River Council (1998) 193 CLR 72 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : INSURANCE COMMISSION OF WESTERN AUSTRALIA -v- WEATHERALL [2007] WASCA 264 (S) CORAM : McLURE JA
- PULLIN JA
BUSS JA
DECISION : 20 DECEMBER 2007 FILE NO/S : CACV 93 of 2005 BETWEEN : INSURANCE COMMISSION OF WESTERN AUSTRALIA
- Appellant
AND
ALISON HARMIONI WEATHERALL
Respondent
(Page 2)
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : YEATS DCJ
Citation : WEATHERALL -v- INSURANCE COMMISSION OF WESTERN AUSTRALIA [2005] WADC 135
File No : CIV 1974 of 2003
Catchwords:
Costs - Whether O 24A offer made in District Court proceedings applies to costs of appeal - Whether appeal judgment operates retrospectively
Legislation:
Rules of the Supreme Court 1971 (WA), O 24A r 10
Result:
Orders made
Category: B
Representation:
Counsel:
Appellant : Ms B A Mangan
Respondent : Mr B L Nugawela
Solicitors:
Appellant : Lavan Legal
Respondent : S C Nigam & Co
(Page 3)
Case(s) referred to in judgment(s):
Elvidge Pty Ltd v BGC Construction Pty Ltd [2006] WASCA 264 (S)
Insurance Commission of Western Australia v Weatherall [2007] WASCA 264
Kschammer v R W Piper & Sons Pty Ltd [2003] WASCA 298 (S)
Oshlack v Richmond River Council (1998) 193 CLR 72
(Page 4)
1 JUDGMENT OF THE COURT: On 4 December 2007 this court dismissed the appeal and allowed the cross-appeal against an assessment of damages for personal injuries (Insurance Commission of Western Australia v Weatherall [2007] WASCA 264). The court varied the judgment below to increase the total sum awarded to the respondent from $393,272 to $515,142. These reasons relate to the costs of the appeal and cross-appeal.
2 The respondent seeks an order for costs on an indemnity basis, relying on two offers of compromise made to the appellant. The first was made on 22 September 2004 which was prior to the District Court trial and the second was made on 4 October 2005 being after trial and before the hearing of the appeal. The judgment obtained by the respondent on appeal is more favourable than both offers of compromise which were rejected by the appellant.
3 Order 24 r 10(4) of the Rules of the Supreme Court 1971 (WA) (the Rules) currently provides:
Where an offer is made by a plaintiff and not accepted by the defendant, and the plaintiff obtains judgment on the claim to which the offer relates no less favourable to him than the terms of the offer, then, unless the court otherwise orders, the plaintiff shall be entitled to an order against the defendant for his costs in respect of the claim from the date on which the offer was made, in addition to his costs incurred before that date, all such costs to be taxed on a party and party basis.
4 Rule 10(4) was amended with effect from 1 March 2007. Prior to that date the former rule materially provided:
… the plaintiff shall be entitled to an order against the defendant for his costs in respect of the claim from the date on which the offer was made, taxed on an indemnity basis in addition to his costs incurred before that date, taxed on a party and party basis.
5 Order 24A r 10(4a) provides that r 10(4) as it was before 1 March 2007 does not apply to an offer made by a plaintiff before 1 March 2007 unless the plaintiff obtains judgment on the claim to which the offer relates before 1 March 2007.
6 Judgment at first instance was entered on 15 July 2005. The respondent contends former r 10(4) applies on the basis that:
(1) the claim to which the appeal judgment relates is the same claim to which the trial judgment relates, the judgment on appeal merely varying the judgment at first instance in
- which event the second offer was to compromise a claim for which judgment had been given before 1 March 2007;
- (2) alternatively, the effect of the first offer made pending the trial carries forward to the appeal, given that the claim to which the offer relates is the same in each case.
7 We would reject both contentions. Order 42 r 2(1) of the Rules provides that a judgment of the court takes effect from the day of its date. The court has a discretion to date its judgment as of an earlier or later day if it determines the judgment should have retrospective or prospective effect (O 42 r 2(2)). Order 42 r 2 applies to the Court of Appeal by virtue of r 5 of the Supreme Court (Court of Appeal) Rules 2005 (WA) (Appeal Rules). The court in Kschammer v R W Piper & Sons Pty Ltd [2003] WASCA 298 (S), when considering O 42, said:
The judgment of an appellate court by which the judgment below is varied takes effect from the date on which the judgment is pronounced, unless the Court exercises its discretion under rule 42(2). The judgment on an appeal is not for all purposes the judgment of the Court below and takes effect on its own pronouncement unless the Court exercises its discretion to ante date it [23].
8 The court's orders made on 4 December 2007 take effect from that date. There was no application to back date the orders or any justification for that course.
9 The respondent's submission that the 'claim' referred to in r 10(4) and r 10(4a) is the same claim at trial and on appeal is inconsistent with r 49 of the Appeal Rules. Rule 49(1) provides that O 24A applies to appeals as if a reference to 'plaintiff' were a reference to 'appellant' and a reference to 'defendant' were a reference to 'respondent'. Rule 49(3) provides that where a respondent institutes a cross-appeal 'plaintiff' refers to that respondent. Thus, r 49 expressly provides that the appellant (or the respondent on a cross-appeal) is the party with the 'claim' for the purposes of O 24A r 10(4) regardless of whether they were the plaintiff or defendant at trial. Thus, the claim in the appeal is separate and distinct from the claim at trial. The claim in the appeal is the contention of error on the part of the trial judge. Moreover this court has previously held that r 10(4) of the Rules only applies to the costs of the proceedings in which the O 24A offer is made: Elvidge Pty Ltd v BGC Construction Pty Ltd [2006] WASCA 264 (S) [6].
10 Accordingly, O 24A r 10(4) in its current form applies in which event the respondent is entitled to party/party costs unless the court
(Page 6)
- otherwise provides. In the absence of an express rule to the contrary, indemnity costs are ordinarily ordered where there has been some unreasonable or delinquent conduct on the part of the party against whom the order is made: Oshlack v Richmond River Council (1998) 193 CLR 72, 89. There has been no such conduct on the part of the appellant in this case and no justification for awarding indemnity costs. Accordingly, we order that the appellant pay the respondent's costs of the appeal and cross-appeal to be taxed.
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