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Marlow v Walsh (No 2)

Marlow v Walsh (No 2)

Case [2009] TASSC 40 2 June 2009

Costs

Appeal

Civil Litigation & Procedure

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[2009] TASSC 40

CITATION: Marlow v Walsh (No 2) [2009] TASSC 40

PARTIES:  MARLOW, Robert John
  v
  WALSH, Abel

TITLE OF COURT:  SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION:  APPELLATE
FILE NO/S:  305/2007
DELIVERED ON:  2 June 2009
DELIVERED AT:  Hobart
HEARING DATE:  12 May 2009
JUDGMENT OF:  Evans, Blow and Porter JJ

CATCHWORDS:

Procedure – Costs – Departing from the general rule – Conduct of parties – Demand, offer and consent – Offer of compromise – Significance in relation to costs of appeal.

Supreme Court Rules 2000 (Tas), r289(2).
Ettingshausen v Australian Consolidated Press Ltd (1995) 38 NSWLR 404; Fotheringham v Fotheringham (No 2) (1999) 46 NSWLR 194; Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd (No 2) [2008] NSWCA 85, referred to.
Aust Dig Procedure [576]

REPRESENTATION:

Counsel:
             Appellant:  I D Bradfield
             Respondent:  K E Read
Solicitors:
             Appellant:  Bradfields
             Respondent:  Hunt & Hunt

Judgment Number: [2009] TASSC 40
Number of paragraphs: 25

Serial No 40/2009
File No 305/2007

ROBERT JOHN MARLOW v ABEL WALSH (NO 2)

REASONS FOR JUDGMENT FULL COURT
EVANS J

BLOW J
PORTER J
2 June 2009

Orders of the Court

That the appellant pay 70 per cent of the respondent's costs of and incidental to the appeal.

That the respondent pay 30 per cent of the appellant's costs of and incidental to the appeal, and all the appellant's costs of the cross-appeal.

That the respondent be granted an indemnity certificate pursuant to the Appeal Costs Fund Act 1968, s8, in respect of the appeal.

Serial No 40/2009
File No 305/2007

ROBERT JOHN MARLOW v ABEL WALSH (NO 2)

REASONS FOR JUDGMENT FULL COURT

EVANS J

2 June 2009

I agree with the reasons for judgment of Blow J and the orders he proposes.
File No 305/2007

ROBERT JOHN MARLOW v ABEL WALSH (NO 2)

REASONS FOR JUDGMENT FULL COURT

BLOW J
2 June 2009

There are three costs applications before the Court. The appellant and the respondent are each seeking an order that the other pay the costs of the appeal, and the appellant is seeking an order that the respondent pay all of the costs of the proceedings at first instance. The background to this situation is as follows:

·     On 11 December 1994 the appellant was travelling in a vehicle driven by the respondent when it ran off the road and the appellant was injured.
·     In 1997 the appellant brought an action against the respondent for damages for negligence in respect of his injuries. The respondent denied negligence and pleaded contributory negligence on the part of the appellant.
·     On 7 December 2004 the respondent made an offer of compromise to the appellant in accordance with the Supreme Court Rules 2000, r280. The amount offered was $159,600 plus costs as agreed or taxed. The appellant did not accept that offer.
·     The action proceeded to trial about two years later. The learned trial judge made findings of negligence and contributory negligence, assessed damages, and gave judgment for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Marlow v Walsh (No 2)

Details

AGLC: Marlow v Walsh (No 2) [2009] TASSC 40
Case: [2009] TASSC 40
Decision Date: 2 June 2009

CaseChat Overview and Summary

Marlow and Walsh were the parties involved in this matter, which came before the court for a determination regarding costs. The nature of the dispute centred on the appeal process and the associated costs, specifically in relation to the conduct of the parties involved. The court was tasked with deciding whether to depart from the usual practice of awarding costs according to the general rule, considering the conduct of the parties throughout the proceedings. A particular focus was on the demand, offer, and consent process, as well as the offer of compromise, and how these factors should influence the costs of the appeal.

The primary legal issues the court had to address were whether the conduct of the parties warranted a departure from the usual rule in awarding costs and, if so, the extent of that departure. The court needed to evaluate the relevance of the offer of compromise and the overall conduct of the parties in making its decision. This required an analysis of the specific circumstances surrounding the demand, offer, and consent process, as well as the broader context of the litigation.

The court found that the conduct of the parties, particularly in relation to the offer of compromise, justified a departure from the general rule regarding costs. The court considered the significance of the offer of compromise and the overall conduct of the parties in its reasoning. The court determined that the conduct of the parties warranted a departure from the usual practice in awarding costs. This decision was based on the specific circumstances of the case, including the nature of the offer of compromise and the conduct of the parties throughout the proceedings. The court found that the costs of the appeal should reflect the conduct of the parties, resulting in a departure from the general rule.

The final orders of the court reflected its reasoning, awarding costs in a manner that took into account the conduct of the parties and the significance of the offer of compromise. The court's decision highlighted the importance of considering the broader context of the litigation when determining costs, particularly in cases where the conduct of the parties may warrant a departure from the general rule. The outcome of this case provides valuable guidance for practitioners when dealing with similar disputes involving costs and the appeal process.

Orders