Insurance Commission of Western Australia v Weatherall

In the matter of Insurance Commission of Western Australia versus Weatherall, the Court of Appeal was called upon to determine the appropriate costs order in relation to the appeal and cross-appeal. The primary dispute involved the assessment of damages for personal injuries sustained by the respondent in a motor vehicle accident. The original trial judgment awarded the respondent $393,272 in damages, which was subsequently varied by the Court of Appeal to $515,142 on appeal and cross-appeal. The central legal issue before the court was whether the indemnity costs order under former Order 24 r 10(4) of the Rules of the Supreme Court 1971 (WA) applied, given the amendments to the rule and the timing of the offers of compromise and the judgments.

The court held that the claim for which the indemnity costs order could be claimed under former Order 24 r 10(4) was the one for which judgment was given before the amendment date of 1 March 2007. As the judgment at first instance was entered on 15 July 2005, and the appeal judgment was given after the amendment date, the former rule did not apply. The court found that the appeal judgment constituted a new judgment, taking effect from the date it was pronounced, and thus did not relate back to the first instance judgment. Consequently, the indemnity costs order under former Order 24 r 10(4) did not apply to the present case. Instead, the court exercised its discretion under the current rules to determine the appropriate costs order.

Given the outcome, the court dismissed the appeal and allowed the cross-appeal. The court varied the judgment below to increase the total sum awarded to the respondent from $393,272 to $515,142. Regarding costs, the court assessed the costs of the appeal and cross-appeal on a party and party basis, reflecting the current rules and the circumstances of the case. The appeal was dismissed, and the cross-appeal was allowed with the damages for past and future loss of earning capacity reassessed.