Peter Willis v Health Communications Network Ltd (No 2) - [2008] NSWCA 2

New South Wales

Court of Appeal

CITATION: Peter Willis v Health Communications Network Ltd (No 2) [2008] NSWCA 2

HEARING DATE(S): On the papers

JUDGMENT DATE:
8 February 2008

JUDGMENT OF: Mason P; Tobias JA; McColl JA

DECISION: (a) Appeal dismissed;
(b) Set aside the orders for costs made by his Honour Judge Finnane in the proceedings at first instance and in lieu thereof :
(i) the appellant to pay 80% of the respondent’s costs of the proceedings in the District Court on an ordinary basis up to and including 23 June 2006 and on an indemnity basis thereafter, and,
(ii) the respondent to pay 20% of the appellant’s costs of the proceedings in the District Court on an ordinary or party/party basis,
such costs to be set off against each other.
(c) The appellant to pay 80% of the respondent’s costs of the summons for leave to appeal and the appeal on an ordinary or party/party basis and the respondent to pay 20% of the appellant’s costs of the summons for leave and the appeal on an indemnity basis, such costs to be set off against each other.

CATCHWORDS: Costs - Ordinary costs - Indemnity costs - Costs on a party/party basis - Calderbank offer - Offer of compromise - Whether costs should be paid on an indemnity basis - Settlement negotiations - Reasonableness of offer - Unreasonableness of refusal of offer - Costs at first instance - Costs on appeal - Separate costs in respect of separate claims - Costs where appellant pursues claim on a different basis on appeal - Costs where outcome of appeal is less favourable than offer.

PARTIES: Peter Willis
Health Communication Network Ltd

FILE NUMBER(S): CA 40673/06

COUNSEL: A: J de Meyrick
R: R Goot SC

SOLICITORS: A: Bryan Gorman & Co, Sydney
R: Clayton Utz, Sydney

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 4065/05

LOWER COURT JUDICIAL OFFICER: Finnane DCJ

LOWER COURT DATE OF DECISION: 26 September 2006

CA 40673/06
DC 4065/05

MASON P
TOBIAS JA
McCOLL JA
Friday 8 February 2008

PETER WILLIS v HEALTH COMMUNICATION NETWORK LTD (NO.2)

Judgment on Costs

1 THE COURT: The substantive judgment in this appeal was delivered on 6 November 2007: Peter Willis v Health Communications Network Ltd [2007] NSWCA 313. Formal orders were not made on that occasion as there was an outstanding matter of costs, the parties being directed to file written submissions as to the costs of the appeal and the costs of litigating what was referred to in the proceedings as the superannuation issue in the District Court, including whether any such costs should be paid on an indemnity basis. Written submissions in respect of those matters have now been filed by both parties.

2 The appellant, whose employment by the respondent was terminated on 13 April 2005, litigated two claims both before the primary judge and this Court. The first was that when his contract of employment was terminated he had in fact been made…

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.

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Details

Case: [2008] NSWCA 2
Decision Date: 8 February 2008

CaseChat Overview and Summary

The appeal concerned the appropriate orders for costs in proceedings between Peter Willis (the appellant) and Health Communications Network Ltd (the respondent) in the District Court and on appeal. The dispute involved claims made by the appellant against the respondent, and the court was required to determine the basis upon which costs should be awarded, particularly in light of settlement offers made during the litigation.

The primary legal issues before the court were whether the respondent's refusal of a settlement offer made by the appellant was unreasonable, thereby justifying an award of indemnity costs against the respondent, and conversely, whether the appellant's conduct warranted an award of indemnity costs against him. The court also had to consider the apportionment of costs between the parties, both in the first instance proceedings and on appeal, and how to address situations where an offer of compromise was made and subsequently refused.

The court reasoned that the appellant's offer of compromise, while not accepted, was not so unreasonable as to warrant an award of indemnity costs against the respondent. However, the court found that the respondent's conduct after a certain point in the proceedings, particularly in relation to its own settlement offers and the overall conduct of the litigation, justified a departure from ordinary costs. Consequently, the court ordered that the appellant pay 80% of the respondent's costs in the District Court on an ordinary basis up to 23 June 2006, and on an indemnity basis thereafter. The respondent was ordered to pay 20% of the appellant's costs on an ordinary basis, with the costs to be set off. Similar orders were made for the costs of the appeal, with the appellant to pay 80% of the respondent's costs on an ordinary basis and the respondent to pay 20% of the appellant's costs on an indemnity basis, also to be set off.

Orders

Orders of the court

(a) Appeal dismissed; (b) Set aside the orders for costs made by his Honour Judge Finnane in the proceedings at first instance and in lieu thereof : (i) the appellant to pay 80% of the respondent's costs of the proceedings in the District Court on an ordinary basis up to and including 23 June 2006 and on an indemnity basis thereafter, and, (ii) the respondent to pay 20% of the appellant's costs of the proceedings in the District Court on an ordinary or party/party basis, such costs to be set off against each other. (c) The appellant to pay 80% of the respondent's costs of the summons for leave to appeal and the appeal on an ordinary or party/party basis and the respondent to pay 20% of the appellant's costs of the summons for leave and the appeal on an indemnity basis, such costs to be set off against each other.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Peter Willis v Health Communications Network Ltd (No 2) [2008] NSWCA 2
HEARING DATE(S):	On the papers
JUDGMENT DATE:	8 February 2008
JUDGMENT OF:	Mason P; Tobias JA; McColl JA
DECISION:	(a) Appeal dismissed; (b) Set aside the orders for costs made by his Honour Judge Finnane in the proceedings at first instance and in lieu thereof : (i) the appellant to pay 80% of the respondent’s costs of the proceedings in the District Court on an ordinary basis up to and including 23 June 2006 and on an indemnity basis thereafter, and, (ii) the respondent to pay 20% of the appellant’s costs of the proceedings in the District Court on an ordinary or party/party basis, such costs to be set off against each other. (c) The appellant to pay 80% of the respondent’s costs of the summons for leave to appeal and the appeal on an ordinary or party/party basis and the respondent to pay 20% of the appellant’s costs of the summons for leave and the appeal on an indemnity basis, such costs to be set off against each other.
CATCHWORDS:	Costs - Ordinary costs - Indemnity costs - Costs on a party/party basis - Calderbank offer - Offer of compromise - Whether costs should be paid on an indemnity basis - Settlement negotiations - Reasonableness of offer - Unreasonableness of refusal of offer - Costs at first instance - Costs on appeal - Separate costs in respect of separate claims - Costs where appellant pursues claim on a different basis on appeal - Costs where outcome of appeal is less favourable than offer.
PARTIES:	Peter Willis Health Communication Network Ltd
FILE NUMBER(S):	CA 40673/06
COUNSEL:	A: J de Meyrick R: R Goot SC
SOLICITORS:	A: Bryan Gorman & Co, Sydney R: Clayton Utz, Sydney
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 4065/05
LOWER COURT JUDICIAL OFFICER:	Finnane DCJ
LOWER COURT DATE OF DECISION:	26 September 2006