Nouri v Australian Capital Territory (No 2)
[2018] ACTSC 328
•26 November 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Nouri v Australian Capital Territory (No 2) |
Citation: | [2018] ACTSC 328 |
Hearing Date: | 26 November 2018 |
DecisionDate: | 26 November 2018 |
Before: | Elkaim J |
Decision: | See [31] |
Catchwords: | TORTS – NEGLIGENCE – Costs – Offer of compromise – Calderbank Offer – discretion – personal costs order against solicitor |
Legislation Cited: | Court Procedures Rules 2006 (ACT) rr 1012, 1752(1)(a) and 1752(1)(b) |
Cases Cited: | Calderbank v Calderbank [1975] 3 All ER 333 Gray v Richards (No 2) [2014] HCA 47; 89 ALJR 113 Nouri v Australian Capital Territory [2018] ACTSC 275 |
Parties: | Einas Nouri (First Plaintiff) Musab Shaor (Second Plaintiff) Australian Capital Territory (Defendant) |
Representation: | Counsel Mr A Campbell (First and Second Plaintiff) Mr D Higgs SC and Ms K Sant (Defendant) |
| Solicitors Gerald Malouf & Partners (First and Second Plaintiff) ACT Government Solicitor (Defendant) | |
File Number: | SC 358 of 2013 |
ELKAIM J:
I handed down the substantive judgment in this matter on 28 September 2018. I found in favour of the defendant and ordered that the plaintiffs pay the defendant’s costs of the proceedings. I gave leave to the parties to seek an alternative costs order.
In addition, it is necessary to deal with an outstanding application by the defendant that certain costs be paid personally by the plaintiffs’ solicitor.
Dealing first with the general costs order, the defendant filed an Application in Proceeding on 22 November 2018 seeking orders arising from offers previously made before and during the hearing.
The defendant relies on r 1752(1)(a) or (b) of the Court Procedures Rules 2006 (ACT) (‘the Rules’) to seek an order that the plaintiffs pay the defendant’s costs from 10 November 2015 on a solicitor and client basis, or alternatively on an indemnity basis. In addition to reliance on the Rules the defendant seeks the above orders pursuant to a Calderbank Offer made on 9 November 2015 (Calderbank v Calderbank [1975] 3 All ER 333).
Learned Senior Counsel for the defendant made it clear at the hearing that the order sought against the plaintiffs was for costs on a solicitor and client basis.
The letters giving rise to the orders sought by the defendant are set out in the Schedule of Correspondence annexed to the application.
There are three letters, each dated 9 November 2015. One letter makes a Calderbank Offer. The offer is that there be judgment for the defendant with no order as to costs. The next letter makes the same offer but pursuant to the rules governing offers of compromise. The third letter explains to the plaintiffs’ solicitor why the offers made by the defendant are “a genuine attempt to resolve this matter...”. The final letter was no doubt prompted by a desire to explain the defendant’s position of offering no monetary benefit to the plaintiffs other than the concession concerning costs.
The next batch of correspondence is dated 15 October 2017. There are two letters, again making the same offers as had been made in November 2015. One letter is a Calderbank Offer and the other letter is an offer of compromise.
Rule 1012 says that if an offer of compromise has been made by the defendant, but not accepted by the plaintiff and the defendant then, in effect, does better than its offer, the defendant is entitled to an order against the plaintiff that its costs be paid on a solicitor and client basis. The entitlement to this costs order is subject to the discretion of the Court, expressed in the introductory words, “Unless the court orders otherwise...”.
10. This discretion should only be exercised in exceptional circumstances. In my view, exceptional circumstances do exist in this matter.
11. Success in the plaintiffs’ case depended on establishing three fundamental components: breach of duty, causation and damages. Each of these components occupied significant amounts of the Court’s time, and no doubt the parties’ time, although it would be impossible to attribute specific ratios to each component.
12. Each of breach of duty, causation and damages was hard-fought between the parties. The plaintiffs succeeded in establishing breach of duty of care and a portion of their damages claim.
13. The defendant’s case in regards to breach of duty of care involved significant amounts of both lay and expert evidence. The defendant’s case also included a direct challenge to the reliability of the plaintiffs in their assertions about what had been said to them by the staff in the Fetal Medicine Unit at Canberra Hospital. The plaintiffs’ success in establishing a breach of duty of care not only involved accepting their version of the various relevant conversations but also their case on the expert opinion about the hospital’s conduct.
14. In relation to damages, the plaintiffs sought about $9 million. The defendant countered with $53,777. The plaintiffs lost on some of the damages claims they made, for example in relation to past economic loss. Nevertheless, they succeeded in obtaining an assessment of damages of $1,813,807, mostly attributable to the future care of their daughter, Saba.
15. Although my assessment of damages was far less than the plaintiffs’ claim, a good deal of the difference can be attributed to my finding, (essentially a technical finding), that damages for future care should be assessed until Saba’s 18th birthday rather than for the remainder of her expected life.
16. Whatever might be said about the plaintiffs’ claim for damages, I am of the view that the defendant’s submission, against the background of the agreed 24-hour care required by Saba was unrealistic and unhelpful.
17. The plaintiffs did of course lose on causation and this dictated the ultimate result in the case. It also led, on basic principles, to the order that the plaintiffs pay the defendant’s costs of the proceedings. Although this order was not challenged by the plaintiffs, I think that the extent of success they achieved in the case, notwithstanding the final verdict against them, is enough to enliven the discretion to “otherwise order”.
18. I think the matters that I have outlined above are applicable to the offers of compromise made both in 2015 and 2017. In relation to the Calderbank Offer, the discretion is more easily enlivened, that is without the need for exceptional circumstances. In my view the discretion, for the reasons I have given above, should also be exercised in relation to the Calderbank Offer.
19. The ultimate basis on which I have come to my view is that I think it reflects a fair and just result of the outcome of this case. The High Court concisely stated the appropriate principle in Gray v Richards (No 2) [2014] HCA 47; 89 ALJR 113:
The disposition which is ultimately to be made in any case where there are competing considerations will reflect a broad evaluative judgment of what justice requires.
20. Accordingly, I will dismiss the defendant’s application filed on 22 November 2018. It follows that the costs order made on 28 September 2018 remains in place.
21. Turning now to the application that the plaintiffs’ solicitor personally pay some of the costs of the defendant. The application arose from an application filed by the plaintiffs on 16 February 2017 to amend their Statement of Claim. On 26 April 2017, I allowed the application and made the following orders:
1.The plaintiffs have leave to amend the Statement of Claim in the form set out in the document entitled “Second Further Amended Statement of Claim”, dated 14 February 2017.
2.The costs of the application and the costs of the vacation of the hearing date, if that were to occur, are intended to be costs payable by the plaintiffs’ solicitors, but no formal order is made, pending any further submissions to be made on that question.
3.The plaintiffs are to inform the Court on the adjourned date whether it is intended to make further submissions on the issue of costs.
4.The matter is stood over to 9 May 2017 for directions before Elkaim J.
22. The reason the defendant sought costs against the plaintiffs’ solicitor personally arises from the solicitor’s completion of a Listing Hearing Questionnaire on 8 September 2016. The questionnaire was signed by Mr Leslie Abboud. He is the solicitor with the carriage of the matter in the firm acting for the plaintiffs, namely Gerard Malouf and Partners.
23. The questionnaire is a form intended to assess the readiness of a matter to be given a hearing date. Thus for example, it asks if there are any matters that a party thinks relevant to the setting of a hearing date. The form as completed by Mr Abboud states that the matter is ready for a hearing date and all appropriate preliminary steps have been undertaken.
24. The point made by the defendant is that this form was obviously incorrectly completed, as evidenced by the application made on 16 February 2017 to amend the Statement of Claim. I made a number of comments about the completion of the form during the hearing on 26 April 2017, at page 79 of the transcript. I do not think it necessary to repeat those comments.
25. No issue has been taken to suggest that the incorrect completion of the form was anything but inappropriate and should not have occurred. The real argument that has emerged between the parties relates to the extent of the costs order that should be made against Mr Abboud. The defendant says the order should not only encompass the two hearing dates of 1 March 2017 and 26 April 2017 but should also extend to the consequences of the application to amend the Statement of Claim. It was submitted on behalf of Mr Abboud that the costs should be limited to the two hearing dates.
26. The basis for Mr Abboud’s submission was that if he had correctly completed the form, the applications to amend the Statement of Claim would still have been made and the plaintiffs would no doubt have been ordered to pay the costs thrown away by the amendments. In other words, the vice that arose from the incorrect completion of the form was limited to the two hearing dates.
27. The defendant countered by saying that the history of the matter demonstrated that previous applications to amend had been the subject of consent and the enormous amount of work that was necessitated by the late application, and in particular to avoid losing the hearing date, meant that the scope of the order should be significantly wider.
28. Without in any way condoning the actions of Mr Abboud, I prefer his argument on this point. There must be a personal costs order against him but I do not think it should extend past the two hearing dates. The application to amend the Statement of Claim was always necessary and, in the proper preparation of the matter, was always going to be made. What was different was the hearing dates necessitated by the incorrect filling out of the form. For this reason, I think the costs of the two hearing dates should be paid by Mr Abboud.
29. I note Senior and Junior Counsel were present on both dates. I take the view that the costs should include the necessity of having both counsel present. As far as the level of costs is concerned, I think the appropriate order is that the costs be paid on a solicitor and client basis.
30. Having regard to my above conclusions I think it appropriate that each party pay its own costs of the hearing on 26 November 2018.
31. I make the following orders:
(a)The defendant’s Application in Proceedings filed on 22 November 2018 is dismissed.
(b)Each party is to pay its own costs of the defendant’s application filed on 22 November 2018.
(c)The order made on 28 September 2018, that the plaintiffs pay the defendant’s costs, is confirmed.
(d)Order (c) is subject to the following: The plaintiffs’ solicitor, Mr Leslie Abboud, is to personally pay the defendant’s costs of 1 March 2017 and 26 April 2017 on a solicitor and client basis, noting that such costs are to specifically include the presence of Senior and Junior Counsel on the above two hearing dates.
| I certify that the preceding thirty-one [31] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: |
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