Marsh v Transport Accident Commission (Costs) - [2020] VSC 283

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2019 04833

KEANE ADAM MARSH	Appellant
v
TRANSPORT ACCIDENT COMMISSION	Respondent

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JUDGE:	Niall JA
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	22 May 2020
CASE MAY BE CITED AS:	Marsh v Transport Accident Commission (Costs)
MEDIUM NEUTRAL CITATION:	[2020] VSC 283

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COSTS – Offer made by appellant lacked necessary certainty – Not an offer of compromise pursuant to Supreme Court (General Civil Procedure) Rules 2015 Order 26 – Respondent to pay appellant’s costs of appeal on a standard basis – Court declined to award indemnity costs pursuant to Supreme Court (General Civil Procedure) Rules 2015 r 26.08(2).

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr A D Clements QC with Ms S Gold	Robinson Gill Lawyers
For the Respondent	Mr C P Young SC with Ms C L Alden	Solicitor for the Transport Accident Commission

HIS HONOUR:

Introduction

This proceeding, an appeal on a question of law pursuant to s 148 of the VictorianCivil and Administrative Tribunal Act 1998 (the ‘VCAT Act’), concerned whether the appellant was a ‘full-time student’ at the time of his mother’s death on 6 December 2015 in a motor vehicle accident. The Tribunal affirmed the decision of the respondent that the appellant was not entitled to certain benefits under s 59 of the Transport Accident Act 1986 (the ‘Act’).

On 1 May 2020, I published reasons stating that I would grant leave to appeal, allow the appeal and set aside the decision of the Tribunal dated 24 September 2019. In addition, I would set aside the decision of the respondent dated 8 March 2016 to deny the appellant benefits under s 59 of the Act and substitute for that decision one which provides that the appellant was a ‘dependent child’ for the purposes of that provision at the time of his mother’s death.

The parties have now filed draft orders that they submit should be made consequent upon my reasons. With the exception of costs, the orders are in an agreed form and I shall make them.

These reasons address the question of costs.

Background

On 21 November 2019, the appellant’s solicitor sent an email to the respondent, attaching an offer of compromise, which stated that: ‘the Plaintiff offers to compromise this proceeding by $87,500.00 plus costs.’

The offer stated that it was served in accordance with Part 2 of Order 26 of the Supreme Court Rules and remained open for 14 days.

The respondent responded by email on 3 December 2019 by way of a letter dated 2 December 2019. The respondent questioned the validity of the offer, noting that the orders sought in the notice of appeal did not seek monetary relief and the offer did not say anything about how the proceeding should be dealt with if the respondent accepted the offer. In those circumstances, so the respondent said, it was difficult…

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.

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Details

Case: [2020] VSC 283
Decision Date: 22 May 2020

CaseChat Overview and Summary

The appeal before the court involved the appellant, Marsh, against the respondent, the Transport Accident Commission. The matter arose from a dispute regarding costs, specifically whether the respondent should bear the appellant’s costs of appeal on an indemnity basis. The dispute was heard and determined by the Supreme Court of Victoria. The appellant argued that the respondent’s offer made prior to the appeal lacked the necessary certainty and did not constitute an offer of compromise as defined by the Supreme Court (General Civil Procedure) Rules 2015 Order 26. The appellant further sought indemnity costs for the appeal under rule 26.08(2) of the same Rules.

The primary legal issue before the court was whether the offer made by the respondent satisfied the requirements of an offer of compromise under Order 26 of the Supreme Court (General Civil Procedure) Rules 2015. Additionally, the court had to determine whether the appellant was entitled to indemnity costs for the appeal under rule 26.08(2) of the Rules. The court considered the relevant statutory provisions and case law to ascertain the nature and requirements of an offer of compromise and the circumstances under which indemnity costs could be awarded. The court concluded that the respondent’s offer did not meet the criteria of an offer of compromise, as it was not sufficiently certain. Furthermore, the court found that the appellant was not entitled to indemnity costs for the appeal.

The Supreme Court of Victoria held that the respondent's offer lacked the necessary certainty and therefore did not qualify as an offer of compromise under Order 26 of the Supreme Court (General Civil Procedure) Rules 2015. The court noted that an offer of compromise must be clear, specific, and unconditional to be effective. As the respondent’s offer did not meet these requirements, the appellant was not obligated to accept it. Consequently, the court ruled that the appellant was entitled to their costs of appeal on a standard basis. However, the court declined to award indemnity costs for the appeal, as the appellant had not established the exceptional circumstances required under rule 26.08(2) of the Rules. The court ordered that the respondent pay the appellant’s costs of appeal on a standard basis, but did not award indemnity costs.

Orders