District Court
New South Wales
Medium Neutral Citation: Kemble v Gate Gourmet Services Pty Ltd [2012] NSWDC 101 Hearing dates: 21 June 2012; written submissions to 2 July 2012; 20 July 2012 Decision date: 20 July 2012 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) First defendant's application for the plaintiff to pay the first defendant's costs in respect to the plaintiff's claim, assessed on an indemnity basis, from the beginning of 2 March 2012, dismissed.
(2) The first defendant is to pay the plaintiff's costs of this application.
Catchwords: COSTS - whether offer of compromise inconsistent with UCPR r20.26 - whether offer capable of acceptance - whether offer contravened legislation applicable to a work injury damages defendant - estoppel by convention - whether s 14 Civil Procedure Act applicable - whether exceptional circumstances existed - whether offer was in fact better than the result obtained by the plaintiff Legislation Cited: Civil Procedure Act 2005 (NSW), s 14
Uniform Civil Procedure Rules 2005 (NSW), rr 20.26, 42.14 and 42.15
Workers Compensation Act 1987 (NSW), s 151Z
Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 346 and 347Cases Cited: Barakat v Bazdarova [2012] NSWCA 140
Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364; [2006] HCA 32
Bullock v London General Omnibus Company [1907] 1 KB 264
Chubs Constructions Pty Ltd v Chamma [2009] NSWCA 98
Chubs Constructions Pty Ltd v Chamma (No 2) (2010) 78 NSWLR 679; [2010] NSWCA 225
Clark v State of New South Wales [2012] NSWCA 139
Con-Stan Industries v Norwich Winterthur Insurance (Aust) Ltd (1986) 160 CLR 226
Dean v Stockland Property Management Pty Ltd (No 2) [2010] NSWCA 141
Hancock v Arnold (No 2) [2009] NSWCA 19
Kemble v Gate Gourmet Services Pty Ltd [2012] NSWDC 52
Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd (No 2) [2008] NSWCA 85
Leda v Weerden (No. 3) [2006] NSWSC 220
Masters v Cameron (1954) 91 CLR 353
Old v McInnes [2011] NSWCA 410
Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264
Palavi v Queensland Newspapers Pty Ltd [2012] NSWCA 182
Pittorino v Yates [2009] NSWCA 87
Pritchard v Trius Constructions Pty Ltd (No 2) [2011] NSWSC 1114
Sanderson v Blyth Theatre Co [1903] 2 KB 533
Smith v Sydney West Area Health Service (No 2) [2009] NSWCA 62
Tuheta Pty Ltd v Ehrenfeld [2010] NSWSC 799
Vieira v O'Shea (No 2) [2012] NSWCA 121Texts Cited: Cameron and Liberman, in "Destruction of documents before proceedings commence: what is the court to do?" (2003) 27 Melbourne University Law Rev 273
The Hon Sir Anthony Mason, The Use and Abuse of Precedent (1988) 4 Aust Bar Rev 93Category: Costs Parties: Plaintiff: Harry John Kemble
First Defendant: Gate Gourmet Services Pty Ltd
Second Defendant: Blue Collar Airport Services Pty LtdRepresentation: Plaintiff: Mr D Campbell SC / Mr T Meakes
First Defendant: Mr D Grieve QC / Mr S Kettle
Second Defendant: Mr C Robertson
Plaintiff: Bryan Gorman & Co
First…
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Details
- AGLC
- Kemble v Gate Gourmet Services Pty Ltd [2012] NSWDC 101
- Case
- [2012] NSWDC 101
- Decision Date
CaseChat Overview and Summary
In the matter of Kemble v Gate Gourmet Services Pty Ltd, the plaintiff pursued a claim against the first defendant, Gate Gourmet Services Pty Ltd, following a workplace injury. The dispute was heard in the District Court of New South Wales. The primary issues before the court were whether the first defendant's offer of compromise was inconsistent with the rules of the Uniform Civil Procedure Rules, whether the offer was capable of acceptance, and if the offer contravened any legislation applicable to work injury damages. Additionally, the court had to determine if estoppel by convention applied, if section 14 of the Civil Procedure Act was relevant, whether exceptional circumstances existed, and if the offer was indeed better than the result obtained by the plaintiff.
The court carefully examined the offer of compromise made by the first defendant, considering the requirements of UCPR rule 20.26. It was found that the offer was not inconsistent with the rules, and it was indeed capable of acceptance. The court also considered the legislative framework governing work injury damages and determined that the offer did not contravene any applicable legislation. Furthermore, the court assessed the application of estoppel by convention, finding that section 14 of the Civil Procedure Act did not apply in this instance. The court concluded that there were no exceptional circumstances present and that the offer was not better than the result obtained by the plaintiff.
The court dismissed the first defendant's application for the plaintiff to pay the first defendant's costs in respect of the plaintiff's claim, assessed on an indemnity basis, from the beginning of 2 March 2012. The court further ordered that the first defendant is to pay the plaintiff's costs of this application. This decision highlights the importance of carefully evaluating offers of compromise under the relevant procedural rules and legislation when determining costs in personal injury cases.
The court carefully examined the offer of compromise made by the first defendant, considering the requirements of UCPR rule 20.26. It was found that the offer was not inconsistent with the rules, and it was indeed capable of acceptance. The court also considered the legislative framework governing work injury damages and determined that the offer did not contravene any applicable legislation. Furthermore, the court assessed the application of estoppel by convention, finding that section 14 of the Civil Procedure Act did not apply in this instance. The court concluded that there were no exceptional circumstances present and that the offer was not better than the result obtained by the plaintiff.
The court dismissed the first defendant's application for the plaintiff to pay the first defendant's costs in respect of the plaintiff's claim, assessed on an indemnity basis, from the beginning of 2 March 2012. The court further ordered that the first defendant is to pay the plaintiff's costs of this application. This decision highlights the importance of carefully evaluating offers of compromise under the relevant procedural rules and legislation when determining costs in personal injury cases.
Orders
Orders of the court
(1) First defendant's application for the plaintiff to pay the first defendant's costs in respect to the plaintiff's claim, assessed on an indemnity basis, from the beginning of 2 March 2012, dismissed.
(2) The first defendant is to pay the plaintiff's costs of this application.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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