| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : ION by his next friend DESPINA ION -v- HARMER [No 2] [2013] WADC 100 (S) CORAM : FENBURY DCJ HEARD : 21 & 22 JANUARY 2013 & ON THE PAPERS DELIVERED : 20 JUNE 2013 SUPPLEMENTARY
DECISION : 3 DECEMBER 2013 FILE NO/S : CIV 79 of 2012 BETWEEN : ANTHONY JAMES ION by his next friend DESPINA ION Plaintiff
AND
CHRISTOPHER HARMER
Defendant
Catchwords: Personal injuries - Application for special costs order - Nonobservance of ICWA policy -Turns on own facts Legislation: Nil
(Page 2)
Result: Application refused
Representation: Counsel:
Plaintiff : Mr K R Pratt
Defendant : Mr D R Clyne
Solicitors:
Plaintiff : Trewin Norman & Co
Defendant : Brian C Sierakowski
Case(s) referred to in judgment(s):
Pihler v Genidi [2001] WADC 74
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1 FENBURY DCJ: The plaintiff succeeded in an action against the defendant for damages for personal injuries suffered in a motor vehicle accident ([2013] WADC 100).
2 This is an application by the defendant for a special costs order pursuant to O 66 r 1(2) of the Rules of the Supreme Court 1971. 3 The defendant seeks an order that in spite of her victory in the action, the plaintiff be deprived of her costs of the action either wholly or in part and/or ordered to pay the defendant's costs of the action, either wholly or in part. 4 It is common ground that the general rule is that the successful party should recover their costs. 5 Each of the parties has filed helpful and concise written submissions. By agreement the court is to consider the matter and give its decision based upon the papers. The defendant relies on the case of Pihler v Genidi [2001] WADC 74 being a decision of a judge of this court. Of course that decision is of persuasive but not binding authority. 6 The basis for the orders sought by the defendant is the plaintiff's 'failure' to follow, or observe perhaps, a policy formulated by the Insurance Commission of Western Australia (ICWA), the gist of which is contained in the following three paragraphs: 4. Where it appears that the claimant's medical condition has stabilised to the extent that settlement can be considered, the Insurance Commission will invite a submission towards settlement, to include; 5. In any event the Insurance Commission expects that a legal practitioner will not in ordinary circumstances, commence (Page 4)
proceedings for damages before providing a submission in the above form. 6. Within 28 days of receiving a submission the Insurance Commission will make an offer of settlement, or alternatively advise of any reason of delay in so doing. 7 It is asserted by the defendant that: The plaintiff unnecessarily and or unreasonably incurred costs and disbursements by failing to utilise the pre-writ opportunity for settlement afforded by the 'policy'. 8 In Pihler v Genidi the plaintiff did not provide details of his claim prior to the issue of a writ. Having issued the writ the plaintiff sought $100,000 damages at the first pre-trial conference. By the conclusion of that conference, the plaintiff's claim was settled for $27,000. The defendant succeeded in obtaining a special costs order based upon a similar assertion made to that of the defendant in this case. At [24] of the reasons her Honour the trial judge said: … I am satisfied that the Insurance Commission policy does provide a reasonable opportunity for a plaintiff to negotiate settlement of a claim prior to the issue of the writ. The failure to provide for the costs of the informal conference when the matter does not settle at conference is a flaw in the policy that should be addressed but it does not detract from the overall reasonableness of the policy itself. I believe it is in the public interest for a mechanism to be in place such as that established by the Insurance Commission so that plaintiffs have an opportunity to settle their claims without incurring the costs of issuing a writ in the District Court. 9 And further, at [28]: …Because I have found that the Insurance Commission policy does provide a reasonable opportunity to negotiate settlement prior to trial and that the policy is in the public interest, in this case where the plaintiff's case is suitable for settlement, the result necessarily follows that by failing to utilise the pre-writ opportunity for settlement the plaintiff has unnecessarily and unreasonably incurred costs. 10 At [30] her Honour went on to explain: … I consider it was unreasonable in the particular circumstances of this case to issue the writ and statement of claim without any attempt to settle the matter with the Insurance Commission beforehand. 'Unreasonableness' requires the Court to examine the particular reasons the plaintiff relies on for failing to utilise the policy. Apart from the costs question, the plaintiff's solicitor has not made submissions based on any reasonable factors. The plaintiff's submissions are based on the personal views of the (Page 5)
solicitor who disagrees with the policy. The solicitor has rejected the 90 Day Rule because he disagrees with it, not because of any particular features of the plaintiff's case which may have shown the policy to be inappropriate in this case but simply because of his disagreement. There is no 'reasonable' basis for the plaintiff's submissions. This will not be the case in all actions; there may be particular issues in a case which indicate it as unsuitable for settlement or unlikely to settle. In such cases it may not be unreasonable for a plaintiff to commence proceedings in the District Court without attempting settlement, at least when the plaintiff's costs of the pre-writ settlement conference are not recoverable.
11 Some of those remarks seem to me to be apt for the case in hand, bearing in mind the solicitors for the plaintiff are the same. However, of course, there are two differences between the circumstances in Pihler v Genidi and the case at hand. This case went to trial and did so without any settlement offer ever being made. 12 It is common ground that the plaintiff did not 'observe' the policy. 13 It is asserted that, as a consequence, ICWA was 'never in a position to make an offer of settlement prior to the filing of the writ'. 14 That would clearly be so if receipt of the writ is the first notice ICWA received of the plaintiff's claim. But assuming s 29 of the Motor Vehicle (Third Party Insurance) Act1943 was complied with, the plaintiff must have given 'notice in writing prescribed by the regulations of her intention to make a claim'. Furthermore, presumably, medical reports must have been provided thereafter. 15 It is worth pausing there to note that it would have been apparent at that stage that the plaintiff's claim was modest having regard to the age of the young man injured and the minor nature of his injuries. Surely the claim would have presented as one likely to be primarily for general and special damages only, with no economic loss. 16 In any event, it is the fact that no settlement submission about damages was made by the plaintiff's solicitors before the issue of the writ. 17 The plaintiff says 'the way for the defendant to protect itself in relation to costs is to make a payment into court or an offer of compromise of the appropriate amount at an early time'. 18 It is common ground no such step was ever taken by the defendant. In my view that fact greatly decreases the likelihood that ICWA would have settled the plaintiff's case if the Commission's 'policy' had been utilised. (Page 6)
19 Given the decision in Pihler v Genidi in my opinion the plaintiff should have submitted a settlement submission before the writ was issued. However given the nature of the case and the way it evolved I am unconvinced that it would have made any difference if the plaintiff had made such a submission. 20 In all the circumstances I am not persuaded there should be a departure from the general rule that the successful party recovers their costs. The costs and consequently the defendant's application for a special costs order must be dismissed.
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