Jones v Schultz (No 2)

[1991] TASSC 178

Serial No B64/1991
List “B”

COURT:                 SUPREME COURT OF TASMANIA

CITATION:            Jones v Schultz (No 2) [1991] TASSC 178; B64/1991

PARTIES:  JONES, Kaye Maree
  v
  SCHULTZ, Raymond

FILE NO:  1005/1988
DELIVERED ON:  22 October 1991
JUDGMENT OF:  Zeeman J

Judgment Number:  B64/1991
Number of paragraphs:  6

Serial No B64/1991
File No 1005/1988

KAYE MAREE JONES v RAYMOND SCHULTZ (NO 2)

REASONS FOR JUDGMENT  ZEEMAN J

22 October 1991

1. On 11 October 1991 I assessed the plaintiff's damages pursuant to an interlocutory judgment in the sum of $39,792.84. Statutory compensation had previously been paid to the plaintiff pursuant to the provisions of Part IV of the Motor Accidents (Liabilities and Compensation) Act 1973 in the sum of $25,306.03. Pursuant to the provisions of s27(1) of that Act, the damages to which the plaintiff became entitled was reduced by the amount of statutory compensation paid. In the result, final judgment was entered in the plaintiff's favour in the sum of $14,486.81. I was then informed that on 25 June 1991 the defendant had paid into court the sum of $50,000.00 and that notice of that payment in had been served on 27 June 1991. That payment was not accepted by the plaintiff.

1. The trial commenced at 10am on 27 June 1991 so that the plaintiff had a very short period of notice indeed of the payment in. Her entitlement was to accept the payment in within fourteen days of the receipt of the notice of payment into court, but not later than the commencement of the trial (O24, r2(1)(a) of the Rules of the Supreme Court). In those circumstances the plaintiff has submitted that she ought not to be penalised in costs for not having accepted the payment in. Reliance was placed on Watt v Davis [1972] Tas SR 277 (NC24).

1. In my view, the notice of the payment in was given at such a late stage that it had the effect of embarrassing the plaintiff's advisers in attempting to give proper advice as to whether or not the payment in ought to be accepted. I was told that on 26 May 1991 the defendant had made a "without prejudice" offer to the plaintiff to settle her claim for $40,000.00 and that the plaintiff did not respond to that for almost a month. I do not consider that matter to sufficiently derogate from the embarrassment caused by the late notice. Whilst the difference between the amount paid in and the amount awarded was large, I do not consider it appropriate to deprive the plaintiff of the costs of the first day of the trial.

1. Different considerations arise in relation to the balance of the trial.

1. For various reasons the trial was adjourned sine die at the conclusion of the first day and did not resume until 25 September 1991. Subject to the matters raised by the plaintiff to which I refer shortly, the period of the adjournment was such that it gave the plaintiff ample opportunity to properly consider the payment in, and if so advised, to make an application permitting her to accept the money paid into court notwithstanding that the trial had commenced. No such application was made. The plaintiff submitted that the failure to make such an application ought not to be taken into account because at the conclusion of the first day of the trial she remained under cross–examination, so that it was not open to her solicitors to freely discuss the matter with her. It would have been open to the plaintiff's solicitors to seek the consent of the defendant to their discussing the matter fully with the plaintiff notwithstanding the fact that she was under cross–examination. They did not do so. Had they taken that step and had the defendant agreed, the plaintiff would have had ample time in which to consider whether an application ought to be made. At the end of the first day of the trial little cross–examination of significance had occurred. The state of the evidence at that stage was such that neither side would have looked at the likely outcome of the case in a light much different from that immediately before the trial commenced. There is no reason to suppose that the defendant would not have agreed to the plaintiff discussing the payment in with her solicitors.

1. In all the circumstances, I consider that the appropriate orders as to costs are as follows:

1That the defendant pay the plaintiff's costs of the action up until and including 27 June 1991.

2That the plaintiff pay the defendant's costs of the action incurred on and after 28 June 1991.