Pihler v GENDI - [2000] WADC 272

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: PIHLER -v- GENDI [2000] WADC 272

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 13 SEPTEMBER 2000

DELIVERED : 30 OCTOBER 2000

FILE NO/S: CIV 4504 of 1999

BETWEEN: VESNA ANE PIHLER
Plaintiff
AND
SOAD GENDI
Defendant

Catchwords:

Practice and procedure - Western Australia - Practice under the Rules of the Supreme Court of Western Australia - Application under O 66 r 1 for the plaintiff to be deprived of either the whole or part of her costs of the action and for the defendant's costs - Failure of the plaintiff to seek to negotiate a settlement prior to commencing action

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943

Rules of the Supreme Court of Western Australia

Result:

Dismissed

Representation:

Counsel:

Plaintiff: Mr T N Cullity
Defendant: Mr J Staude

Solicitors:

Plaintiff: Trewin Norman & Co
Defendant: Jackson McDonald

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Buyquick.Com Ltd v Foxgold Pty Ltd [2000] WASC 216
Dobb v Hucket (1993) 10 WAR 532
Bakaj v Talna Pty Ltd, unreported; DCt of WA; Library No 4901; 10 May 1996

DEPUTY REGISTRAR HARMAN: The plaintiff obtained judgment by consent at the pre-trial conference. According to the parties that judgment contemplates that the defendant had the right to apply in relation to costs.
By the application presently before the Court the defendant seeks orders pursuant to O 66 r 1(2) of the Rules of the Supreme Court that the plaintiff be deprived of her costs wholly or in part and/or be ordered to pay the defendant's costs of the action either wholly or in part.
The subrule is as follows:
"If the Court is of the opinion that the conduct of a party either before or after the commencement of the litigation or that a claim by a party for an unreasonably excessive amount has resulted in costs being unnecessarily or unreasonably incurred it may deprive that party of costs wholly or in part, and may further order him to pay the costs of an unsuccessful party either wholly or in part."
It is appropriate to record that O 66 r 1(1) provides that costs are discretionary and that, in effect, subject to subrule (2) the Court will generally order that the successful party recovers its costs. The plaintiff was successful in the action. Where subrule (2) has effect it is intended to and does operate as a penalty. The onus is on the applicant.
The action is conducted on behalf of the defendant by the Insurance Commission of Western Australia, the insurer of motor vehicles for the purposes of the Motor Vehicle (Third Party Insurance) Act 1943. The evidence upon which the applicant relies is expressed in the affidavit of its officer Mr Principe. The significant features of the evidence are as follows:
1.The Commission had generated a policy designed to encourage settlement of claims prior to the commencement of litigation. That policy was reduced to writing and was published.…

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 Pihler v GENDI

Details

AGLC: Pihler v GENDI [2000] WADC 272
Case: [2000] WADC 272
Decision Date: 30 OCTOBER 2000

CaseChat Overview and Summary

In the Supreme Court of Western Australia, Pihler, the plaintiff, sought relief against GENDI, the defendant, following a dispute that led to the plaintiff initiating legal proceedings. The plaintiff sought to recover damages from the defendant and was awarded a sum following a judgment in her favour. GENDI then applied for an order that the plaintiff be deprived of all or part of her costs of the action and that the defendant's costs be awarded. The defendant based this application on the plaintiff's failure to seek to negotiate a settlement prior to commencing the action, as required by O 66 r 1 of the Rules of the Supreme Court of Western Australia.

The primary legal issue the court had to determine was whether the plaintiff's failure to attempt to negotiate a settlement prior to commencing the action justified depriving her of all or part of her costs. The court had to consider the implications of the plaintiff's non-compliance with the procedural requirement set out in O 66 r 1. The court had to balance the principle of penalising the plaintiff for not attempting to negotiate a settlement against the broader principles of justice and fairness, including the plaintiff's entitlement to seek redress through the court process.

The court held that depriving the plaintiff of her costs would be disproportionate in the circumstances of the case. The court recognised the importance of the requirement to negotiate a settlement but concluded that the plaintiff's failure did not warrant such a severe penalty. The court considered the plaintiff's conduct throughout the proceedings, the merits of her case, and the overall fairness of the outcome. The court found that depriving the plaintiff of her costs would not serve the interests of justice and was not warranted. Consequently, the court dismissed the defendant's application for an order depriving the plaintiff of her costs.

Orders