Oliver v Roberts (No 2) - [2018] ACTCA 44

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	Oliver v Roberts (No 2)
Citation:	[2018] ACTCA 44
Hearing Date(s):	7 August 2018
DecisionDate:	9 October 2018
Before:	Murrell CJ, Loukas-Karlsson and Charlesworth JJ
Decision:	The respondent is to pay the appellant’s costs at first instance on a solicitor/client basis for the whole of the proceedings. The respondent is to pay the appellant’s costs of the appeal on a party/party basis.
Catchwords:	PRACTICE AND PROCEDURE – COSTS – Where plaintiff made offer of compromise – Where offer not accepted and judgment on appeal no less favourable to plaintiff – Rule 1010 Court Procedures Rules 2006 (ACT) – Whether the plaintiff’s claim changed significantly after offer was made – Whether there are exceptional circumstances PRACTICE AND PROCEDURE – COSTS – Costs of appeal – Whether the appellant enjoyed only a limited success on appeal – Whether costs should follow the event
Legislation Cited:	Court Procedures Rules 2006 (ACT) rr 1002, 1010
Cases Cited:	Clarkson Williams Partners Pty Ltd v Vaughan (No 2) [2016] ACTCA 8 Forge v Rewers (No 2) [2017] ACTSC 273 Geddes v Taleni (No 2) [2017] ACTSC 215 Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd) (No 2) [2014] NSWCA 391 Oliver v Roberts [2017] ACTSC 360 Oliver v Roberts [2018] ACTCA 35
Parties:	Andrew Robert Oliver (Appellant) Caroline Roberts (Respondent)
Representation:	Counsel Dr A Morrisson SC and Mr I Bradfield (Appellant) Mr K Rewell SC and Mr D Crowe (Respondent)
Solicitors MTM Legal (Appellant) Moray and Agnew (Respondent)
File Number(s):	ACTCA 66 of 2017
Decision under appeal:	Court/Tribunal: Supreme Court of the ACT Before: Walmsley AJ Date of Decision: 12 December 2017 Case Title: Oliver v Roberts Citation: [2017] ACTSC 360 Court File Number(s): SCC 439 of 2013

THE COURT

The Appeal

In Oliver v Roberts [2017] ACTSC 360, the primary judge awarded damages of $1,084,575 to the appellant, who had suffered a traumatic brain injury in a motor vehicle accident. The damages included a buffer of $200,000 for future economic loss.

On appeal (Oliver v Roberts [2018] ACTCA 35), we increased the buffer to $450,000 and increased the associated damages for superannuation loss. The overall award for damages was increased to $1,369,575.

Submissions on costs

Relying on r 1010 of the Court Procedures Rules 2006 (ACT) (“CPR”), the appellant claimed his costs of the trial proceedings on a solicitor/client basis. On 27 May 2016, the appellant had offered to settle the proceedings for $1.2M plus costs by an offer of compromise that complied with r 1002 of the CPR.

The respondent opposed the proposed costs order and submitted that, after the offer of compromise, the appellant’s claim had changed significantly but the offer had not been renewed. In relation to the change of circumstances, the respondent submitted:

(a)The offer of compromise had been made soon after the appellant had commenced working at Questacon and prior to the appellant serving expert reports opining that there was…

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 Oliver v Roberts (No 2)

Details

AGLC: Oliver v Roberts (No 2) [2018] ACTCA 44
Case: [2018] ACTCA 44
Decision Date: 9 October 2018

CaseChat Overview and Summary

This matter concerned an appeal from a decision of the Supreme Court of the Australian Capital Territory. The appellant, Oliver, sought to recover costs from the respondent, Roberts, following a judgment on appeal. The central dispute revolved around the application of Rule 1010 of the *Court Procedures Rules 2006* (ACT), which governs offers of compromise and the subsequent award of costs.

The primary legal issues before the Court of Appeal were whether the appellant's claim had changed significantly after an offer of compromise was made, and if there were any exceptional circumstances warranting a departure from the usual cost orders. Additionally, the Court was required to determine the appropriate costs order for the appeal itself, considering the extent of the appellant's success on appeal.

The Court of Appeal found that the appellant's claim had not changed significantly after the offer of compromise was made. Furthermore, the Court determined that there were no exceptional circumstances that would justify deviating from the general rule that costs follow the event when an offer of compromise is not accepted and the judgment obtained is no less favourable than the offer. Consequently, the Court ordered that the respondent pay the appellant's costs at first instance on a solicitor-client basis for the entirety of the proceedings. The respondent was also ordered to pay the appellant's costs of the appeal on a party-party basis.

Orders

Orders of the court

The respondent is to pay the appellant’s costs at first instance on a solicitor/client basis for the whole of the proceedings.

The respondent is to pay the appellant’s costs of the appeal on a party/party basis.

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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