Newcastle City Council v McShane (No 2)

NEW SOUTH WALES COURT OF APPEAL

CITATION:      NEWCASTLE CITY COUNCIL v McSHANE (No 2) [2005]  NSWCA 250

FILE NUMBER(S):
40009/04

HEARING DATE(S):               20 July 2005

JUDGMENT DATE: 25/07/2005

PARTIES:
NEWCASTLE CITY COUNCIL
Travis McSHANE

JUDGMENT OF:       Mason P Giles JA    

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          DC 4527/02

LOWER COURT JUDICIAL OFFICER:     Robison DCJ

COUNSEL:
Appellant/Claimant: G Beauchamp
Respondent/Opponent: M E Down (Solicitor)

SOLICITORS:
Appellant/Claimant: Phillips Fox
Respondent/Opponent: Carroll & O'Dea

CATCHWORDS:
Costs - Calderbank offer - whether s198D of the Legal Profession Act extends to costs in the Court of Appeal (D)

LEGISLATION CITED:

DECISION:
List for Directions

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40009/04

MASON P
GILES JA

Monday 25 July 2005

NEWCASTLE CITY COUNCIL v Travis McSHANE (No 2)

JUDGMENT

1. THE COURT:      Earlier proceedings in this Court (constituted by Mason P, Sheller JA and Giles JA) culminated in orders granting leave to appeal; dismissing the appeal; refusing leave to cross-appeal; and requiring the appellant/cross-opponent to pay 85% of the respondent’s/cross-claimant’s costs of the application for leave to appeal and appeal and the application for leave to cross-appeal (see Newcastle City Council v McShane [2004] NSWCA 425).

2. Two additional matters have arisen for decision that the parties have agreed may be resolved on the papers.  The parties have also consented to these matters being dealt with by Mason P and Giles JA, Sheller JA having retired from the Court.

3. The first matter relates to a Calderbank offer of settlement made by the respondent and rejected by the appellant.  The respondent has applied for a variation to the costs order whereby it has the costs of the appeal on an indemnity basis.  The offer was without prejudice except as to costs and it indicated the respondent’s preparedness to accept the judgment sum of $62,300 plus costs.  The offer was made on 11 October 2004, some 11 days prior to the hearing fixed in this Court.  It was open for acceptance until 15 October 2004 and was not accepted.

4. The offer contained no element of compromise.  In our view, the case for indemnity costs is not made out.

5. The second matter raises an issue of general significance.  If it is appropriate for resolution at this stage it ought to be heard and determined by a bench of 3 judges, ideally with the assistance of oral submissions to supplement the written submissions already filed on the matter.

6. The substantive point relates to the scope of s198D of the Legal Profession Act 1987, which provides:

   198D     Maximum costs fixed for claims up to $100,000

   (1)If the amount recovered on a claim for personal injury damages does not exceed $100,000, the maximum costs for legal services provided to a party in connection with the claim are fixed as follows:

   (a)in the case of legal services provided to a plaintiff maximum costs are fixed at 20% of the amount recovered or $10,000, whichever is greater,

   (b)in the case of legal services provided…