Mann, Arnold v Redgrave, Nicholas Gordon (Ruling)

[2009] VCC 1495

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES – COMPENSATION

MEDICAL DIVISION

Case No. CI-07-04731

ARNOLD MANN	Plaintiff
v
NICHOLAS GORDON REDGRAVE	Defendant

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JUDGE:	HIS HONOUR JUDGE SACCARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	29 May 2009
DATE OF RULING:	3 June 2009
CASE MAY BE CITED AS:	Mann, Arnold v Redgrave, Nicholas Gordon (Ruling)
MEDIUM NEUTRAL CITATION:	[2009] VCC 1495

RULING

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Catchwords: Rule 26.03(5) County Court Civil Procedure Rules 2008 to withdraw offer of compromise.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Appeared in person
For the Defendant	Mr A Smith	John W Ball & Sons
HIS HONOUR:

1          In this proceeding, an application is made by the plaintiff for leave to withdraw an offer of compromise made by him on the 8th December 2008 which was expressed as remaining open to be accepted until 4.00 pm on 31st July 2009. The reasons given by the plaintiff in support of the application are as follows:

(i)	The plaintiff, in making the offer, did not take into account the magnitude of his special damages until he came to reckon them;
(ii)	The defendant, in his defence of the proceeding, is unreasonably seeking to justify his medical management, which it is asserted by the plaintiff was wholly unreasonable and involved the unnecessary infliction of injury to the plaintiff.

2 The plaintiff makes this application pursuant to the provisions of Rule 26.03(5) of the County Court Civil Procedure Rules 2008, which provides:

“An offer of compromise shall not be withdrawn during the time it is open

to be accepted, unless the Court otherwise orders.”

3          In considering the issue as to whether it is appropriate to grant the plaintiff leave to withdraw his offer of compromise during the time it is open to be accepted, I consider that I should not so order unless I am satisfied that, since the date upon which the offer of compromise was made, there has been a change of circumstances in the proceeding of sufficient magnitude to make it just that the plaintiff be permitted to withdraw the offer: see Scanruby Pty Ltd v Caltex Petroleum Pty Ltd [2001] NSWSC 411.

4          In the circumstances of the present case, I am not satisfied that such a change of circumstance has occurred, for the following reasons:

(i)

Whilst the plaintiff is self-represented, he is a medical practitioner of considerable experience. At the time at which the offer of compromise was made, he must been aware that his claim with respect to special damages was in the process of completion or had yet to be calculated. In circumstances in which the plaintiff effectively took the chance that the costs associated with his future medical treatment would be accommodated by the offer which he made to the defendant, I am not satisfied that the fact that the quantum of the plaintiff’s special damages has exceeded his expectations, constitutes a change in circumstance sufficient to justify an order allowing the withdrawal of the offer of compromise;

(ii)

The fact that the plaintiff has a perception that the defence of the claim is unjustified does not, in my opinion, give rise to a change in circumstances which should be considered as relevant to the exercise of my discretion to allow the plaintiff to withdraw his offer of compromise. I am not in a position to form an opinion as to the merits of the plaintiff’s case or the defendant’s defence. I note that the defendant continues to deny liability. In any event, I do not consider the strength of a party’s position in the proceedings to be a circumstance which should be taken into account in considering the issue with which I am required to deal. It is unlikely that a court would ever be in the position to determine with any degree of precision the merit of such an argument at an interlocutory stage in the proceedings. For this reason, I am of the opinion that the assertion by the plaintiff that the case brought against the defendant is indefensible, is not a matter which could be considered as putting a different complexion on the litigation so as to justify the granting of the order which is being sought.

5          For the reasons as outlined above, I am not satisfied that I should grant the plaintiff leave to withdraw the offer of compromise made in this proceeding.

6          Finally, I direct that this order, all correspondence relating to this application and the making of the offer of compromise, together with the offer of compromise be filed so as to comply with Rule 26.05 of the Rules of this Court.