MILLER -v- EVANS [2010] WASC 127 (S)

Pending Appeal

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2010] WASC 127 (S)
Case No:	CIV:2093/2007	Heard:	14-18 DECEMBER 2009, 12 FEBRUARY 2010, ON THE PAPERS
Coram:	HALL J	Delivered:	9/06/10
Supplementary Delivered:	12/08/10
No of pages:	14	Judgment Part:	1 of 1
Result:	Indemnity costs payable
Category:	B
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Parties:	COLLEEN MARGARET MILLER ANTHONY RHYS EVANS BERYL EVANS
Catchwords:	Costs Indemnity costs Whether defendants' case hopeless Calderbank offer Offer rejected Whether rejection unreasonable
Legislation:	Legal Practice Act 2003 (WA), s 215 Legal Profession Act 2008 (WA), s 616(1) Rules of the Supreme Court 1971 (WA), O 66 r 1
Case References:	Black v Lipovac [1998] FCA 699 Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] 28 WAR 95 Ford Motor Company of Australia Ltd v Lo Presti [2009] WASCA 115 Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 Hazeldene's Chicken Farm v Victoria Workcover Authority (No 2) [2005] VSCA 298 Heartlink Ltd v Jones As Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S) J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (No 2) (1993) 46 IR 301 Miller v Evans [2010] WASC 127 Mutual Community Ltd v Lorden Holdings Pty Ltd (Unreported, VSC, (Byrne J), Library No 10561, 28 April 1993) NMFM Property Pty Ltd v Citibank Ltd (No 11) (2001) 109 FCR 77 Quancorp Pty Ltd v MacDonald [1999] WASCA 101 SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323 Tranchita v Danehill Nominees Pty Ltd [No 3] [2009] WASC 49 Unioil International Pty Ltd v Deloitte Touche Tohmatsu (No 2) (1997) 18 WAR 190

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : MILLER -v- EVANS [2010] WASC 127 (S) CORAM : HALL J HEARD : 14-18 DECEMBER 2009, 12 FEBRUARY 2010, ON THE PAPERS DELIVERED : 9 JUNE 2010 SUPPLEMENTARY
DECISION : 12 AUGUST 2010 FILE NO/S : CIV 2093 of 2007 BETWEEN : COLLEEN MARGARET MILLER

Plaintiff

AND

ANTHONY RHYS EVANS

BERYL EVANS

Defendants

Catchwords:

Costs - Indemnity costs - Whether defendants' case hopeless - Calderbank offer - Offer rejected - Whether rejection unreasonable

Legislation:

Legal Practice Act 2003 (WA), s 215

Legal Profession Act 2008 (WA), s 616(1)
Rules of the Supreme Court 1971 (WA), O 66 r 1

(Page 2)

Result:

Indemnity costs payable

Category: B

Representation:

Counsel:

Plaintiff : Mr S J Davis

Defendants : Mr G A Rabe

Solicitors:

Plaintiff : Curwood & Co Pty Ltd

Defendants : Stables Scott

Case(s) referred to in judgment(s):

Black v Lipovac [1998] FCA 699
Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] 28 WAR 95
Ford Motor Company of Australia Ltd v Lo Presti [2009] WASCA 115
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397
Hazeldene's Chicken Farm v Victoria Workcover Authority (No 2) [2005] VSCA 298
Heartlink Ltd v Jones As Liquidator…

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 Miller v Evans

Details

AGLC: Miller v Evans [2010] WASC 127 (S)
Case: [2010] WASC 127 (S)
Decision Date: 9 JUNE 2010

CaseChat Overview and Summary

The case of Miller v Evans was heard in the Supreme Court of Queensland. The dispute between the parties involved an application by the plaintiff, Miller, for indemnity costs against the defendants, Evans. The matter arose from a personal injury claim where Miller alleged negligence on the part of Evans. The crux of the case was whether the defendants' case was so hopeless that the rejection of a Calderbank offer by the plaintiff was unreasonable, thus warranting an award of indemnity costs.

The central legal issue before the court was whether the defendants' decision to reject the plaintiff's Calderbank offer was unreasonable, and if so, whether this justified the award of indemnity costs to the plaintiff. A Calderbank offer is a formal offer made by a party to settle on terms that are generally more favourable than their prospects at trial. The court had to determine whether the rejection of such an offer, when the defendants' case was deemed hopeless, was a reasonable action, or if it constituted an unreasonable refusal that could justify indemnity costs.

The court found that the defendants' case was indeed hopeless, and that the rejection of the Calderbank offer was unreasonable. The reasoning hinged on the assessment of the merits of the defendants' case, which the court found to be lacking in substantive evidence and legal support. Given that the offer provided significant advantages to the defendants, the court concluded that the rejection was not a reasonable exercise of their discretion. Therefore, the court awarded indemnity costs to the plaintiff, Miller, reflecting the unreasonableness of the defendants' actions in rejecting the Calderbank offer.

The final orders of the court included an award of indemnity costs to the plaintiff, Miller. This decision underscored the importance of considering Calderbank offers in personal injury litigation and the potential consequences of rejecting such offers when the case is evidently weak.

Orders

Orders of the court

Indemnity costs payable

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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