Partridge v Hobart City Council (No 2)
[2013] TASFC 1
•4 February 2013
[2013] TASFC 1
COURT: SUPREME COURT OF TASMANIA (FULL COURT)
CITATION: Partridge v Hobart City Council (No 2) [2013] TASFC 1
PARTIES: PARTRIDGE, Moira Kathleen
v
HOBART CITY COUNCIL
TREZISE, Michael t/as Trezise Lawyers
BEHRAKIS, Peter
BEHRAKIS, Victoria Ann
BEHRAKIS, Dennis
BEHRAKIS, Maria
FILE NO: 20/2011
JUDGMENT
APPEALED FROM: Partridge v Hobart City Council [2010] TASSC 62
DELIVERED ON: 4 February 2013
DELIVERED AT: Hobart
HEARING DATE: Written submissions only
JUDGMENT OF: Crawford CJ, Blow and Wood JJ
CATCHWORDS:
Procedure – Costs – Departing from the general rule – Conduct of parties – Demand, offer and consent – Offer of compromise as to liability and apportionment only – Calderbank offer when appeal pending.
Supreme Court Rules 2000 (Tas), r289(2).
Marlow v Walsh (No 2) [2009] TASSC 40, referred to.
Aust Dig Procedure [576]
REPRESENTATION:
Counsel:
Appellant: C H Hobbs
Respondents: Submissions by solicitors
Solicitors:
Appellant: Ogilvie Jennings
First Respondent: Hunt & Hunt
Second Respondent: Page Seager
Other Respondents: Jackson Tremayne & Faye
Judgment Number: [2013] TASFC 1
Number of paragraphs: 21
Serial No 1/2013
File No 20/2011
MOIRA KATHLEEN PARTRIDGE v HOBART CITY COUNCIL,
MICHAEL TREZISE t/as Trezise Lawyers, PETER BEHRAKIS,
VICTORIA ANN BEHRAKIS, DENNIS BEHRAKIS, MARIA BEHRAKIS (NO 2)
REASONS FOR JUDGMENT FULL COURT
CRAWFORD CJ
BLOW J
WOOD
4 February 2013
Orders of the Court
That the respondents pay 25% of the appellant's party/party costs of and incidental to the appeal.
That three indemnity certificates pursuant to the Appeal Costs Fund Act 1968, s8, be granted in respect of the appeal, to the first respondent, the second respondent, and the other respondents.
That the respondents pay the appellant's party/party costs of and incidental to their respective cross-appeals.
That the orders of the learned trial judge made on 28 March 2011 in action number 602/2003 be set aside.
That the defendants pay the plaintiff's costs of and incidental to that action, on a solicitor/client basis up to and including the fifth day of the trial, and on a party/party basis thereafter.
Serial No 1/2013
File No 20/2012
MOIRA KATHLEEN PARTRIDGE v HOBART CITY COUNCIL,
MICHAEL TREZISE, t/as Trezise Lawyers, PETER BEHRAKIS,
VICTORIA ANN BEHRAKIS, DENNIS BEHRAKIS, MARIA BEHRAKIS (NO 2)
REASONS FOR JUDGMENT FULL COURT
CRAWFORD CJ
4 February 2013
I agree with the reasons of Blow J and the orders he proposes.
File No 20/2011
MOIRA KATHLEEN PARTRIDGE v HOBART CITY COUNCIL,
MICHAEL TREZISE, t/as Trezise Lawyers, PETER BEHRAKIS,
VICTORIA ANN BEHRAKIS, DENNIS BEHRAKIS, MARIA BEHRAKIS (NO 2)
REASONS FOR JUDGMENT FULL COURT
BLOW J
4 February 2013
The appellant has applied for costs orders against the respondents in respect of the action that she brought against them, her appeal, and the respondents' three cross-appeals. None of the respondents have sought orders for costs in their favour. They all conceded that they should pay some of the appellant's costs, but they have submitted that this Court should make orders less favourable to the appellant than those she has sought.
The history of the proceedings, so far as is relevant, is as follows:
· In 2003 the appellant sued the respondents for damages in respect of injuries that she suffered in a fall.
· On 20 May 2009 the respondents made an offer of compromise to the appellant under the Supreme Court Rules 2000, r280. They offered $300,000 damages and her party/party costs. That offer was not accepted.
· On 19 August 2009 the appellant made an offer of compromise under r280. She offered to consent to orders that judgment be entered for her against the respondents for damages to be assessed, and that those damages be reduced by 30% for contributory negligence on her part. The offer related only to liability and contributory negligence, not to damages. It was not accepted.
· The action went to trial before Porter J. The trial ran for about 13 days commencing on 24 November 2009, resumed on 1 February 2010, and continued over three more days.
· His Honour gave judgment on 21 December 2010: Partridge v Hobart City Council [2010] TASSC 62. His Honour held that all the respondents were liable in negligence for damages; found that there had been contributory negligence on the appellant's part; reduced her damages by 20% because of contributory negligence (less than the 30% reduction she had offered to consent to); and gave judgment for her in the sum of $295,350 (less than the $300,000 that the respondents had offered her).
· On 22 December 2010 counsel for the respondents sought orders for costs, but counsel for the appellant submitted that they were too late, and that any such application should have been made the previous day when judgment was given. The proceedings were adjourned.
· On 27 and 28 January 2011 counsel for all parties made detailed submissions as to costs.
· On 28 March 2011 the learned trial judge made some quite complicated orders for costs, taking into account the two offers of compromise. He ordered that (1) the respondents pay the appellant's costs of the action up to and including 21 May 2009 on a solicitor/client basis; (2) that the appellant pay the respondents' costs from 22 May 2009 to 20 August 2009 on a party/party basis; (3) that, save for the costs of the trial, the appellant pay 70% of the respondents' costs after 20 August 2009 on a party/party basis; (4) that, as to the costs of the trial, the appellant pay 70% of one third of the respondents' costs on a party/party basis; (5) that the respondents pay 30% of the appellant's costs after 20 August 2009 on a party/party basis; (6) that the respondents pay the appellant's costs of the hearing on 22 December 2010; and (7) that there be no order as to the costs of the hearing on 27 and 28 January 2011. His Honour published his reasons for making those orders: Partridge v Hobart City Council (No 2) [2011] TASSC 35.
· The appellant appealed to this Court in respect of the assessment of her damages.
· All of the respondents cross-appealed. The first respondent's grounds of appeal related only to the assessment of damages. The others appealed in relation to both liability and damages.
· On 6 April 2011 the solicitors for the appellant wrote to the solicitors for the respondents making a Calderbank offer: Calderbank v Calderbank [1975] 3 WLR 586. The appellant offered to accept $302,000 plus her party/party costs of the action and of the appeal in full settlement of all her claims. That offer was not accepted.
· The hearing of the appeal and cross-appeals by this Court took three days. Only one of the appellant's arguments succeeded. That argument related to whether or not future entitlements to social security benefits should be taken into account in assessing damages for future economic loss. All the cross-appeals were totally unsuccessful. The result was that the judgment sum was varied by increasing it to $368,530 (more than the $300,000 that had been offered to the appellant in May 2009, and more than the $302,000 that she had offered to accept in April 2011): Partridge v Hobart City Council [2012] TASFC 3.
The costs of the action
The appellant is seeking orders that the costs orders made by the learned trial judge on 28 March 2011 be set aside, and that the respondents pay her costs of the action on a solicitor/client basis, including the costs of and incidental to the hearings on 22 December 2010 and 27 and 28 January 2011. The respondents accept that the orders of the learned trial judge should be set aside, and that they should be ordered to pay the appellant's costs of the action, but they contend that those costs should be ordered only on a party/party basis.
Because the judgment sum was increased by this Court to a figure that exceeded the $300,000 that was offered to the appellant in May 2009, that offer of compromise should be ignored.
However the second offer of compromise, by which the appellant offered to consent to a 30% reduction for contributory negligence, remains significant. Because the learned trial judge reduced her damages by only 20%, and because that percentage was not challenged in the appeal proceedings, r289(1) applies in relation to the costs of the action. That subrule reads as follows:
"(1) Unless the Court or a judge otherwise orders, a plaintiff is entitled to an order for costs against the defendant taxed on a solicitor-client basis if —
(a)the plaintiff has made an offer of compromise in accordance with this Part; and
(b)the defendant has not accepted the offer at the time of the judgment; and
(c)the judgment is no less favourable to the plaintiff than the terms of the offer."
The respondents contend that this Court should "otherwise order", essentially for the following reasons:
· The offer of compromise related only to liability and apportionment, not damages. Had it been accepted, a long trial would still have been needed for the purpose of assessing damages.
· The learned trial judge made substantial adverse findings as to the credibility of the appellant. The respondents contend that the costs of the action were substantially and needlessly increased, and that significant judicial time was wasted, because of exaggeration and intransigence on the appellant's part.
· The respondents contend that the appellant's claim for damages, as particularised, was grossly inflated and exaggerated, to such an extent that the costs of the action were needlessly increased to a very significant degree, and significant judicial time wasted in dealing with unmeritorious and exaggerated claims.
· The respondents contend that the manner in which the trial was conducted by or on behalf of the appellant resulted in substantial needless delays and adjournments.
It appears that all of these points were addressed by his Honour in his decision as to costs: Partridge v Hobart City Council (No 2) (above) at pars[80] – [82]. At pars[81] and [86] of those reasons, his Honour indicated that he did not regard the matters referred to in my last two dot points above as being particularly significant. However, at par[87], his Honour indicated that he regarded the issue of the appellant's credibility and his significant adverse findings as to her credibility as significant factors to be taken into account when determining questions of costs. I see no reason why this Court should not approach all those matters in the same ways that his Honour did. It seems to me that the appellant's lack of credibility, and the successful challenges to her credibility, contributed substantially to the length of the trial, whereas the inclusion of exaggerated claims in the particulars, the late production of discoverable documents, and so forth, did not make a significant difference to the costs of the litigation.
The making of an offer of compromise by a plaintiff that relates only to liability and apportionment, and not to the quantum of damages, is authorised by r280(4)(c). Rule 282 provides that acceptance of such an offer results in a plaintiff becoming entitled "to enter interlocutory judgment for the agreed proportion of damages to be assessed". When such an offer is made and not accepted, r289(1) entitles the plaintiff to an order for solicitor/client costs in respect of the whole action unless the Court or a judge "otherwise orders". The subrule is penal in effect, and is designed to encourage the proper settlement of litigation: Clark v State of Tasmania (1999) 9 Tas R 54 at par[19].
However the Court has an unfettered discretion to depart from the orders that r289(1) prescribes. In my view, the greater the proportion of the trial devoted to the assessment of damages, the more readily the Court should be prepared to "otherwise order". Having regard to the nature of the appellant's injuries and the damages that she recovered, it is fair to say that her trial was a long one. Most of the trial was devoted to the assessment of her damages. And the length of the trial was substantially contributed to by her lack of credibility and the need to challenge her credibility. Because of those factors, I do not think that the appellant should recover the whole of the costs of her action on a solicitor/client basis. To give her offer of compromise in relation to liability and contributory negligence due weight, I think she should recover her costs on a solicitor/client basis up to and including the fifth day of the trial, and recover her costs thereafter on a party/party basis.
It was not submitted on behalf of the respondents that this Court should deal separately with the costs of the appearances on 22 December 2010 and 27 and 28 January 2011. I therefore see no reason to deal separately with the costs of those appearances.
The costs of the appeal
The appellant is seeking an order that the respondents pay her costs of the appeal proceedings on a solicitor/client basis. In the alternative, she is seeking an order that they pay her costs of the appeal proceedings on a party/party basis up to and including 6 April 2011 – the date of her Calderbank offer – and thereafter on a solicitor/client basis. The respondents contend that they should only be ordered to pay 25% of the costs of the appeal proceedings, on a party/party basis.
None of the parties have submitted that the costs of the cross-appeals ought to be dealt with separately from the costs of the appeal. However, it is usual for the costs of cross-appeals to be dealt with separately, and I see no reason to take a different approach in this case.
The appellant contends that the provisions in the Supreme Court Rules relating to offers of compromise do not apply in relation to appeals. The respondents contend that they do. I discussed the competing arguments in Marlow v Walsh (No 2) [2009] TASSC 40 at pars[14] – [19]. It was not necessary for the point to be decided in that case because the Full Court unanimously concluded that, whether r289(2) applies to appeal costs or not, it was preferable to make orders that were tailored to the circumstances of that particular case. In my view this is another case in which it is unnecessary to decide the question as to the applicability of the rules, and in which it is in the interests of justice to make costs orders that are tailored to the circumstances of the case.
Counsel for the appellant relied heavily on the Calderbank offer made on 6 April 2011. He submitted that the appellant's proposal to settle for $302,000 plus party/party costs represented a substantial compromise, and that all the costs incurred after the making of that offer were needlessly incurred. I agree. That is a very significant factor that must be taken into account.
However it is also fair to say that substantial costs were needlessly incurred as a result of the appellant pursuing grounds of appeal that had little or no merit, and wasting time in other ways at the hearing of the appeal. That hearing took three full days. Argument in relation to the cross-appeals occupied only a small proportion of those three days. The appellant's successful argument about social security benefits was presented by her junior counsel. His submissions as to the relevant ground of appeal took a little under an hour. As a result of a sensible arrangement between counsel for the respondents as to the division of labour, only counsel for the second respondent made submissions in relation to that ground. His submissions took about 40 minutes. In an ideal world, if only the argument as to social security benefits had been pursued, the hearing of the appeal would have taken no more than about two hours, and there would have been no need for senior counsel. But the hearing of the appeal did not proceed ideally by any means. The first couple of hours were wasted because of a totally unmeritorious application by senior counsel for the appellant for leave to adduce actuarial evidence in relation to the Consumer Price Index. The appellant pursued many grounds of appeal that involved totally unmeritorious challenges to the learned trial judge's findings of fact. In relation to one submission, this Court remarked that counsel for the appellant "seemed to overlook all of the case law as to the principles that must be applied by an appellate court in an appeal involving challenges to findings of fact made by a trial judge": Partridge v Hobart City Council (above), at par[156]. Time was also taken up as a result of counsel for the appellant making submissions in opposition to applications by the respondents to amend their notices of cross-appeal, when there was no risk that the appellant would suffer any prejudice if leave to amend were granted.
It is open to this Court to make an order that reflects the fact that the appellant succeeded in relation to one issue raised by her appeal, and that the respondents succeeded in relation to all the others: Forster v Farquhar [1893] 1 QB 564; Cretazzo v Lombardi (1975) 13 SASR 4; Hughes v Western Australian Cricket Association (Inc) [1986] ATPR ¶408-748; Burnie Port Corporation Pty Ltd v Bank of Western Australia Ltd (No 3) (2003) 12 Tas R 325; Marlow v Walsh (No 2) (above) at par[22].
In the circumstances, I do not think an order for solicitor/client costs should be made in favour of any of the parties in relation to the appeal. I would order that the respondents pay to the appellant 25% of her costs of her appeal, and the whole of her costs of their respective cross-appeals, on a party/party basis.
Appeal Costs Fund Act 1968
The appeal succeeded because the learned trial judge followed a number of cases which this Court decided to overrule. In those circumstances, it is appropriate for the respondents to be granted certificates under s8 of this Act. There should be three certificates – one for the first respondent (the council), one for the second respondent (Mr Trezise), and one for the other respondents (the landlords).
Conclusion
For the above reasons, I would make orders as follows:
1That the respondents pay 25% of the appellant's party/party costs of and incidental to the appeal.
2That three indemnity certificates pursuant to the Appeal Costs Fund Act 1968, s8, be granted in respect of the appeal, to the first respondent, the second respondent, and the other respondents.
3That the respondents pay the appellant's party/party costs of and incidental to their respective cross-appeals.
4That the orders of the learned trial judge made on 28 March 2011 in action number 602/2003 be set aside.
5That the defendants pay the plaintiff's costs of and incidental to that action, on a solicitor/client basis up to and including the fifth day of the trial, and on a party/party basis thereafter.
File No 20/2011
MOIRA KATHLEEN PARTRIDGE v HOBART CITY COUNCIL,
MICHAEL TREZISE, t/as Trezise Lawyers, PETER BEHRAKIS,
VICTORIA ANN BEHRAKIS, DENNIS BEHRAKIS, MARIA BEHRAKIS (NO 2)
REASONS FOR JUDGMENT FULL COURT
WOOD J
4 February 2013
I agree with the reasons of Blow J and the orders he proposes.
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