Pittorino v Yates

[2009] NSWCA 87

New South Wales

Court of Appeal

CITATION:	Pittorino v Yates [2009] NSWCA 87
HEARING DATE(S):	4 February 2009
JUDGMENT DATE:	27 April 2009
JUDGMENT OF:	Beazley JA at 1; Tobias JA at 2; Handley AJA at 43
DECISION:	(a) Leave to appeal granted; (b) The claimant’s notice of appeal to be filed within 7 days of the date of these orders; (c) Appeal dismissed; (d) The claimant to pay the opponent’s costs of the summons for leave to appeal and the appeal.
CATCHWORDS:	PROCEDURE – costs – departing from the general rule – conduct of parties – offer of compromise – whether offer of compromise made less than two months before the date of commencement of the trial had been left open for a reasonable time – whether the reasonableness of the time for which an offer is left open for acceptance is assessed as at the date the offer is made or having regard to circumstances both before and after that date
LEGISLATION CITED:	Uniform Civil Procedure Rules 2005
CASES CITED:	Hillier v Sheather (1995) 36 NSWLR 414, 422 Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd (No 2) [2008] NSWCA 85 Leda v Weerden (No 3) [2006] NSWSC 220 Morgan v Johnson [1998] NSWSC 367; (1998) 44 NSWLR 578 New South Wales Insurance Ministerial Corporation v Reeve (1993) 42 NSWLR 100 South Eastern Sydney Area Health Service v King [2006] NSWCA 2
PARTIES:	Nazzareno Pittorino Sharmain Yates
FILE NUMBER(S):	CA 40901/07
COUNSEL:	Cl: L King SC Opp: H Kelly SC
SOLICITORS:	Cl: Moray & Agnew, Newcastle Opp: Stacks, Coolangatta
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 36/2006
LOWER COURT JUDICIAL OFFICER:	Blanch CJ
LOWER COURT DATE OF DECISION:	23 November 2007

CA 40901/07
DC 36/06

BEAZLEY JA
TOBIAS JA
HANDLEY AJA

Monday 27 April 2009

NAZZARENO PITTORINO v SHARMAIN YATES

Judgment

1 BEAZLEY JA: I agree with Tobias JA.

2 TOBIAS JA: On 23 November 2007, at the conclusion of a trial conducted before Justice Blanch at the Lismore sittings of the District Court conducted at Byron Bay, his Honour entered a verdict in favour of the opponent against the claimant in the sum of $378,501. The opponent’s claim had arisen out of a motor vehicle accident that occurred in 2004.

3 On 25 September 2007 the claimant had made an Offer of Compromise pursuant to r 20.26(1) of the Uniform Civil Procedure Rules 2005 (the UCPR) (the Offer) in the sum of $400,000 exclusive of costs. As the verdict obtained by the opponent was less than the offer, the claimant made an application pursuant to r 42.15 that the opponent pay the claimant’s costs on an indemnity basis as and from 26 September 2007, that being the day after the offer was made: see r 42.15(2)(b)(i).

4 His Honour proceeded to hear the application and then, for reasons not presently relevant, adjourned the matter for further argument in Sydney.

5 On 12 December 2007 his Honour delivered judgment on the claimant’s costs application pursuant to r 42.15 of the UCPR that the opponent pay the claimant’s costs. His Honour refused that application and ordered the claimant to pay the opponent’s costs of the proceedings. The opponent seeks this Court’s leave to appeal against that decision. The application for leave and the substantive appeal have been heard concurrently.

The relevant rules

6 The Offer was stated to be open for acceptance for a period of 28 days which expired on 23 October 2007. Having been made two months before the commencement date of the trial, the provisions of r 20.26(7)(b) became critical to the resolution of the dispute between the parties. That rule is relevantly in the following terms:

“(7) The following provisions apply if an offer is limited as to the time it is open for acceptance:
(a) the closing date for acceptance of the offer must not be less than 28 days after the date on which the offer is made, in the case of an offer made 2 months or more before the date set down for commencement of the trial;
(b) the offer must be left open for such time as is reasonable in the circumstances, in the case of an offer made less than two months before the date set down for the commencement of the trial.”

7 According to my research, sub-rule (b) did not find expression in either the Supreme Court Rules or the District Court Rules which were replaced by the UCPR. Relevantly, although Pt 22 r 3(3) of the repealed Supreme Court Rules 1973 and Pt 19A r 3(3) of the repealed District Court Rules provided that acceptance of an offer may be expressed to be limited as to the time it is open to be accepted which shall not be less than 28 days after it is made, the distinction drawn in r 20.26(7)(a) of the UCPR of an offer made two or more months before the date set down for the commencement of the trial on the one hand and that in r 20.26(7)(b) of an offer made less than two months before that date on the other, did not find expression in either the Supreme Court or District Court Rules which the UCPR replaced.

The relevant facts

8 A live issue at the trial related to the opponent’s fitness for work and, in particular, her long term prognosis with respect to remaining in full-time employment until she reached normal retirement age. In this context the opponent had sustained in the accident a fractured dislocation of her C6/C7 vertebrae and osteomeatal compound fracture and bilateral pleural effusions. She underwent a C6/C7 intervertebral disc fusion procedure using a posterior instrumented approach by a neurosurgeon, Dr Kam. However, she claimed that she continued to suffer ongoing cervical spondylitic pain secondary to her injury including restricted neck movements that, allegedly, affected her ability to continue indefinitely with her pre-accident clerical employment.

9 The opponent qualified Dr A G Hopcroft, a general surgeon, who provided reports dated 10 May 2005, 20 February 2007, 4 June 2007 and 17 August 2007. In his report of 4 June 2007 Dr Hopcroft opined, relevantly, as follows:

“I believe she is going to continue to have significant problems in undertaking even clerical work as further neck pain and restricted movement develops those sequelae being inevitable. I do not believe she will be able to remain in the workforce to an expected age of 65 and is likely to see curtailment of her employment life to about the age of 60. I believe by the age of 45-50 this patient will have such significant ongoing neck pain that she is likely to be limited to half time work and the regular use of a cervical collar.
I believe she is very likely to have to retire from the workforce at an earlier age because of significant post-traumatic cervical spondylitic changes developing.”

10 In his report of 17 August 2007 Dr Hopcroft maintained

“that this patient will continue to have significant problems with her neck into the future regarding her working prospects on the balance of probabilities, with almost premature deterioration at the C4/5 level in her neck and at the T1, T2 level in her upper back.”

He also affirmed that it was quite likely that between the ages of 45 and 50 the opponent would be reduced to part-time work even in clerical positions and that it was equally likely that she would be forced to retire prematurely from the workforce.

11 The claimant relevantly qualified Dr Tony Blue, a specialist orthopaedic surgeon and Dr J M Matheson, a consultant neurosurgeon. Dr Blue’s first report was dated 11 June 2007 and was served on the opponent’s solicitor on 14 August 2007. Dr Blue had been provided with Dr Hopcroft’s reports of 10 May 2005 and 20 February 2007. Relevantly, Dr Blue opined that the opponent’s prognosis was reasonable, as he believed that her impairment and disability had stabilised and was unlikely to increase in degree. With respect to her future fitness for employment he stated:

“I believe that she will remain fit for clerical duties to a normal age of retirement but certainly would not be fit for work activities involving excessive neck movement, such as painting a ceiling or driving plant.”

12 Dr Matheson had prepared a report on behalf of the claimant dated 23 August 2006 but which was not served until 7 March 2007. He made no reference in that report to having been provided with any of Dr Hopcroft’s reports. Nevertheless, having examined the opponent, he noted that she was back at work full-time and that he expected that she would have some stiffness and discomfort in her neck at that stage. He opined that she was fit for work, that she was working at present and that she was handling it satisfactorily.

13 As the primary judge noted, there was a flurry of activity with respect to the serving of medical reports which commenced in early September 2007, it being noted that the proceedings were listed for trial at the District Court sittings at Lismore to commence on or about 19 September. As it happened, the matter was marked “not reached” at those sittings on 25 September and were adjourned to the next sittings of the court at Lismore to commence on or about 19 November. On 25 September (the day that the proceedings were not reached) the claimant served the Offer upon the opponent’s solicitor.

14 Returning to the chronology with respect to the service of medical reports, on 6 September 2007 the claimant served upon the opponent’s solicitors a further report of Dr Matheson dated 28 August 2007. In that report Dr Matheson stated that he had reviewed the three reports of Dr Hopcroft dated 10 May 2005, 20 February 2007 and 17 August 2007. He disagreed with Dr Hopcroft’s opinion that there would be a reduction in the opponent’s work capacity by the age of 45 and 50 and early retirement. He said:

“Patients that break their necks and undergo fusions generally settle down well and have little problems. It is only in the context of social problems and compensation claims that we see emergence of claims of permanent disability and thus the natural history of this condition is not being fulfilled by Mrs Yates and she is producing a distorted view of matters and Dr Hopcroft is reinforcing this distorted view by the notion that she would have to undergo early retirement. The chances of her having to undergo early retirement are faint.”

15 Dr Matheson then referred to Dr Blue’s report dated 11 June 2007 and observed that it appeared “to be a more balanced report”. However, he considered that even Dr Blue had exaggerated the amount of domestic care that the opponent would require in the future.

16 Five days later on 11 September 2007, the claimant served upon the opponent’s solicitors a further report of Dr Blue dated 3 September 2007. He also had been provided with Dr Hopcroft’s report dated 17 August 2007, which he had been requested to review. In Dr Blue’s opinion he considered that Dr Hopcroft was

“being slightly pessimistic in his prognosis regarding [the opponent]. In my personal experience of cervical fusion, particularly in the mid and lower levels of the cervical spine, the prognosis is quite good following successful surgery such as has been carried out in this particular case.
…
It is on this basis that I offered my more favourable prognosis in my report of June 11 2007, particularly as [the opponent] does appear to be very well motivated.”

17 This was the state of the medical evidence at the time that the claimant served the Offer. However, prior thereto, the opponent’s solicitor had conferred with counsel on 20 September, and was advised that in the light of the further reports of Drs Matheson and Blue dated 28 August 2007 and 3 September 2007 respectively, a specialist orthopaedic surgeon should be qualified to examine and assess the opponent and to comment on those reports. What concerned counsel and the opponent’s solicitor was that Dr Hopcroft was not a specialist orthopaedic surgeon but a general surgeon although he did, to a degree, undertake orthopaedic surgery.

18 Having made enquiries as to a suitable specialist, arrangements were made for the opponent to see Dr James Ellis, a specialist orthopaedic surgeon, on 23 October 2007. It would appear that this arrangement was made prior to a letter of instruction from the opponent’s solicitor to Dr Ellis dated 2 October 2007 in which he was requested, relevantly, to discuss the opponent’s fitness for work generally including any tasks which she should avoid and her long term prognosis for remaining in employment.

19 Although the opponent’s solicitor had sworn an affidavit that counsel had advised that a specialist orthopaedic surgeon should comment upon Drs Blue and Matheson’s reports dated 3 September 2007 and 28 August 2007 respectively, the evidence would appear to indicate that neither of those reports were provided to Dr Ellis and no comments were obtained thereon. Nevertheless he did provide a 10 page report dated 29 October 2007 which was not received by the opponent’s solicitor until 9 November 2007.

20 In that report Dr Ellis opined that the opponent was

“just fit for her pre-accident clerical position but she accomplishes this with difficulty … I think it reasonable that she needs to cease full-time work now and look for part-time work of a similar type or work which does not require prolonged use of the upper limbs and stress on her neck.”

He considered that the opponent was likely to remain with a stiff and painful neck and weakness in her upper limbs for an indefinite period and that her prognosis was poor.

21 As I have indicated, the position as at 25 September 2007, when the claimant served the Offer, was that the opponent’s solicitor had been served with the latest reports of Drs Matheson and Blue on 6 and 12 September 2007 and had taken advice on 20 September of the necessity, in the light of those reports, to qualify a specialist orthopaedic surgeon to respond to them. However, the difficulty that the opponent’s solicitor faced was that the opponent’s appointment to see Dr Ellis was on 23 October, the very date upon which the Offer expired. It was not suggested that the solicitor was tardy in obtaining that appointment after receiving counsel’s advice to obtain a specialist orthopaedic surgeon’s opinion.

22 Accordingly, on 17 October 2007 the opponent’s solicitor contacted the claimant’s solicitor requesting that the claimant leave the Offer open until 30 October as the opponent’s solicitor was going on leave from 18 to 29 October and wished to discuss the report with both his client and counsel on his return, expecting that it would be received by 29 October 2007.

23 The claimant’s solicitor responded by letter dated 18 October 2007 advising that he was instructed to leave the Offer open until Friday 26 October and not 30 October. As I have indicated, Dr Ellis’ report was not available as at either of those dates.

24 Finally, it is to be noted that as a consequence of the letter of 18 October the opponent’s solicitor wrote to Dr Ellis confirming his consultation with the opponent on 23 October and that negotiations with the claimant’s insurer by way of an offer of compromise would expire on 26 October. He requested Dr Ellis to provide his report as a matter of urgency so that it could be considered within “the timeframe that the plaintiff was faced with”.

The primary judge’s decision

25 After referring to r 20.26(7)(b) and the history of service of the medical reports to which I have referred above, and in particular those of Drs Matheson and Blue dated 28 August 2007 and 3 September 2007 respectively, the primary judge observed:

“No doubt, as a result of those two very strong expressions of opinion, it was decided that it was necessary for a fully qualified orthopaedic surgeon to provide a report and Dr Ellis’ report, when it did eventually become available, was one which substantially answered the views of Dr Blue and Dr Matheson. There has been argument before me as to what reports were sent to Dr Ellis. I believe the important thing to be considered in the case is the history of the litigation and the point at which this issue arose and how important it was in respect of the debate between the plaintiff and the defendant.”

26 His Honour concluded in the following terms:

“In effect, in late August and early September, these reports were becoming available and being served on the plaintiff. The offer of compromise was on 25 September, in my view it was perfectly reasonable for those advising the plaintiff to seek to answer those reports and in particular to get a report from an orthopaedic surgeon and it would be unreasonable to expect that they would be able to do so by 29 October which was the last day the defendant was prepared to leave the offer of compromise open. As the history reveals, the report of Dr Ellis, the preliminary report, was not received until 8 November 2007. In other words if I look at the history of the matter and I look at the period that the offer of compromise was left open, it was not reasonable to expect the plaintiff to settle the case without having had the opportunity to obtain an opinion from a qualified orthopaedic surgeon such as Dr Ellis.”

27 Although at one stage the claimant approached his Honour’s judgment upon the basis that he had not made a finding that the Offer was invalid in that it had not been left open for such time as was reasonable in the circumstances within the meaning of r 20.26(7)(b), ultimately the appeal proceeded on that basis. In my opinion there can be no doubt that his Honour held that in the circumstances which he had related, the Offer was not left open for such time as was reasonable in the circumstances. On that basis the claimant’s application for an order for costs under r 42.15 was refused.

The parties’ submissions and their resolution

28 In the circumstances, the claimant accepted that in order for this Court to intervene it was necessary for him to establish that the primary judge had erred either as a matter of law or fact. As to the former, it was submitted, albeit faintly, that the question of whether an offer of compromise had been left open for a reasonable time in the circumstances within the meaning of r 20.26(7)(b), was to be determined as at the date the offer was made. It was further submitted that although the circumstances would include the knowledge of the party making the offer, in the present case, as at the time the Offer was made on 25 September 2007, there had been no notification to the claimant’s solicitor that the opponent proposed to qualify a specialist orthopaedic surgeon to respond to the views expressed by Drs Matheson and Blue in their reports which were served in early September.

29 In my opinion the construction of the rule contended for by the claimant should be rejected. It is ambulatory in its operation. It may be a moot question as to whether, for it to be reasonable for an offer to be left open for a particular time, the circumstances justifying such a finding must occur prior to the time limited by the offer within which it was to be open for acceptance. In the case of an offer made two months or more before the date set down for commencement of the trial, the closing date for acceptance must not be less than 28 days. There is no such requirement in respect of an offer made less than two months before that date: only that it must be left open for such time as is reasonable in the circumstances. That might be more or less than 28 days depending on those circumstances: cf Leda v Weerden (No 3) [2006] NSWSC 220 at [10]. In any event, in the present case the relevant circumstances occurred prior to 26 October when the Offer, as extended, expired.

30 One of the difficulties with the claimant’s submission is that in the present case it would have been open to the claimant to serve the Offer on the same day as it served the reports of Drs Matheson and Blue. In such circumstances, and as was in fact the case until 17 October, the claimant’s solicitor was not on notice that the opponent had been advised to qualify a specialist orthopaedic surgeon to counter the strong opinions expressed by Drs Blue and Matheson, particularly the latter. If the reasonableness of an offer, limited by the time within which it was to be kept open for acceptance, was to be determined as the date it was made, then in the circumstances postulated a few days might well be regarded as a reasonable period for the offer to be kept open: that being a period sufficient for the offeree to be advised whether or not to accept the offer. It would not matter that the offeree had, in effect, been ambushed by the service of damning medical reports and the making of an offer of compromise at the same time. It would be irrelevant on the claimant’s argument that the service of those reports cried out for a response thereto, if necessary from an independent medical specialist. In my opinion that is not the intent of the rule.

31 No doubt there may be circumstances where it is appropriate for the offeror, having served medical reports, to assume that the offeree does not propose to respond to them. Whether or not in a particular case the circumstances justify such an assumption is a matter of judgment on the part of the court. In the present case his Honour, a highly experienced common law judge, considered that it was perfectly reasonable for those advising the opponent to seek to answer those reports and in particular to obtain a report from a specialist orthopaedic surgeon. I can see no error in his Honour making that finding. It was one that was, in my view, clearly open to him. In fact, it was not the subject of challenge.

32 However, of greater significance is the fact that on 17 October 2007, some six days before the expiration of the time limited by the Offer within which it was to be kept open for acceptance, the opponent’s solicitor informed the claimant’s solicitor that Dr Ellis had been qualified and that he was to see the opponent on the very day that the Offer was to expire. A request was then made that the Offer be kept open for a further seven days until 30 October to enable Dr Ellis’ report to be obtained and for the opponent and her advisers to consider whether or not to accept the Offer in the light of Dr Ellis’ expressed opinions. This request was only partly acceded to, namely, until 26 October. His Honour found that it was unreasonable to expect that the opponent’s solicitor would be able to obtain a report from an orthopaedic surgeon by 29 October, a fortiori by 26 October being the date until which the claimant had agreed to keep the offer open.

33 The claimant submitted that it was not part of his approach to what was adversarial litigation to in any way assist the opponent. In particular, there was no reason why he should have kept the Offer open so as to enable the opponent to consider Dr Ellis’ report for the purpose of determining whether or not to accept the Offer. In effect, as the litigation was conducted on the usual adversarial basis, it was unnecessary for any quarter to be given.

34 This is no doubt true. Indeed, it was clearly in the claimant’s interests to exert as much pressure as possible upon the opponent to accept the Offer in the light of the reports of Drs Matheson and Blue. I have no problem with that approach: indeed, as submitted, it was part of the cut and thrust of adversarial litigation of the nature of that under consideration.

35 However, an offeror such as the claimant, although entitled to take this tactical approach to the matter, takes the risk that in an application for costs under r 42.15, the offer not being accepted within the time limited thereby, a court may be requested by the offeree to find that in the circumstances the offer was not kept open for a reasonable time.

36 In my opinion it was open to his Honour to find that it was not reasonable to expect the opponent to accept the Offer without having had the opportunity to obtain an opinion from a qualified orthopaedic surgeon such as Dr Ellis provided that this was achieved expeditiously. I do not consider that there was any error on his Honour’s part in so finding.

37 Although it is true that the purpose of making an offer of compromise, and the rules relating to costs where such an offer is not accepted, are intended to encourage the proper compromise of litigation and to oblige the offeree to give serious thought to the risk involved in non-acceptance (Morgan v Johnson [1998] NSWSC 367; (1998) 44 NSWLR 578 at 581 F-G; cf South Eastern Sydney Area Health Service v King [2006] NSWCA 2 at [83]), such principles need to be read in the light of the clear intent of r 20.26(7)(b). Where an offer is made less than two months before the date set down for the commencement of the trial, it must be left open for such time as is reasonable in the circumstances. That required an evaluative judgment to be made by the primary judge in the present case that in my view has not been infected by error either of fact or principle.

38 Furthermore, keeping the Offer open for a further short period to enable the opponent and her advisers to receive and consider Dr Ellis’ report would not be inconsistent with the principles to which I have referred. Had the Offer been kept open to permit this to occur, the fact that Dr Ellis’ opinion, as ultimately expressed, displayed somewhat of a gulf between his views and those of Dr Hopcroft on the one hand and those of Drs Matheson and Blue on the other may or may not have led to the acceptance of the Offer. Even if it had led to the Offer being rejected, it may well have generated a counter-offer of compromise, thus continuing and encouraging the proper compromise of the litigation in the interests of both the parties and the public.

39 In my view the purpose of the rule under consideration is to avoid the very situation that occurred in the present case. The relevant principles to which I have referred do not require an offeree to accept an offer that may well be inimical to his or her interests. Nor do those principles require an offeree to be placed under undue and unfair pressure to accept an offer in circumstances where, as in the present case, a further medical report, the production of which was then in the pipeline, would if accepted justify rejection of the offer. The subject rule is intended to operate fairly as between the parties and in particular, to avoid in appropriate circumstances, one party exerting undue pressure on the other in a manner that is unreasonable. Indeed, it is intended to afford an offeree the opportunity, if the circumstances so warrant, to make an informed and reasoned judgment whether or not to accept the offer.

40 Finally, the claimant referred the Court to the factors set out at para 42.14.10 of Ritchie’s Uniform Civil Procedure NSW, page 8782 which the authorities had established did not require refusal of a special costs order when an offer of compromise had not been accepted and the offeree had obtained a judgment less favourable to the offer. In particular, reference was made to it having been held that the fact that an offeree is unaware of adverse material evidence, such as an adverse video surveillance film, was not a ground that would justify refusal of an indemnity costs order. This point was mentioned because ultimately in the present case there was a video surveillance film of the opponent of which she and her legal advisers were at all material times unaware and upon which the primary judge relied in declining to accept, at least in whole, the evidence of Drs Hopcroft and Ellis.

41 However, in my opinion the existence of the video surveillance film and its use is of no relevance to the present issue. Rules 42.14 and 42.15 deal with the question of costs where the offer is not accepted and a judgment less favourable to the offeree is obtained. The present appeal is not concerned with that issue, which would only arise if the Offer in the present case had been kept open for a reasonable time in the circumstances. As it was not, then it follows that the fact that the Offer was not accepted is irrelevant and no question of refusal of a special costs order under Pt 42.15 arose for consideration.

Conclusion

42 In my opinion the claimant has failed to demonstrate that his Honour was in error in finding that the Offer was not kept open for such time as was reasonable in the circumstances. I would therefore propose the following orders:

(a) Leave to appeal granted;

(b) The claimant’s notice of appeal to be filed within 7 days of the date of these orders;

(c) Appeal dismissed;

(d) The claimant to pay the opponent’s costs of the summons for leave to appeal and the appeal.

43 HANDLEY AJA: In this matter I have the misfortune to differ from the judgements of Beazley JA and Tobias JA. The facts, the history of the proceedings and the relevant rules of the UCPR have been set out by Tobias JA and I gratefully adopt those parts of his Honour’s reasons.

44 In my judgment the reasons of the learned primary judge for refusing to order the plaintiff to pay the defendant’s costs on an indemnity basis in accordance with UCPR 42.15A were flawed in principle. I must explain my reasons as briefly as possible.

45 The primary judge held that “it would be unreasonable to expect” the plaintiff’s solicitors to get a report from an orthopaedic surgeon by 29 October which was the last day the defendant’s offer of compromise was open for acceptance and “It was not reasonable to expect the plaintiff to settle the case without having had the opportunity to obtain an opinion from a qualified orthopaedic surgeon such as Dr Ellis.”

46 Properly understood, as Tobias JA holds, the primary judge decided that the defendant’s offer of compromise was not “left open for such time as is reasonable in the circumstances” within UCPR 20.26(7)(b). The offer was received by the plaintiff’s solicitors on 26 September 2007 and was expressed to remain open for 28 days. It was later extended for a further three days. The offer was sent the day the case was adjourned not reached to the next sittings of the District Court at Lismore to commence on 19 November. Thus the offer was made less than 2 months before the date set down for the commencement of the trial and UCPR 20.26 (7)(b) was engaged. If an offer is made more than two months before the date of the trial UCPR 20.26(7)(a) allows a closing date for acceptance 28 days after the date the offer is made.

47 The structure of the rules makes it clear that an offer made less than two months before the date of the trial may be left open for less than 28 days. This is confirmed by UCPR 20.25 which defines the final deadline for offers, inter alia, as the time when the judicial officer begins to give his or her reasons for decision, and UCPR 42.14(2)(b)(ii) which deals with offers made on or after the first day of the trial.

48 Thus an offer made within the 2 months period before the date of trial may be left open for less than 28 days, even considerably less. This offer was left open for more than 28 days. It would be strange if a 28 day offer made just outside the two-month period would unquestionably be valid, but one inside that period for 31 days could be held to be unreasonably short.

49 In this case the offer was made 47 days before the adjourned trial date, nine days outside the two month period which would have made a 28 day offer unchallengeable. That is not all. The case had been listed for hearing in the September sittings at Lismore, and both parties would have gone to trial if the case had been reached. On 17 September, while the parties were waiting to get on, they had settlement discussions, and on 19 September the plaintiff made a formal offer of compromise.

50 The judge held that the period allowed by the defendant was unreasonably short because on 25 September the plaintiff did not have a medical report from an orthopaedic surgeon, and her solicitors had just been advised by senior counsel to obtain one. The plaintiff’s solicitor had qualified Dr Hopcroft, a general surgeon, but the defendant had served reports from Dr Matheson, a neurosurgeon, and Dr Blue, an orthopaedic surgeon. The plaintiff’s solicitors made an appointment for their client to see Dr Ellis, an orthopaedic surgeon, on 23 October, and on 2 October they sent him copies of some medical reports. There is no evidence that they sent Dr Blue’s second report served on 11 September or either of Dr Matheson’s reports. In his report of 29 October Dr Ellis only commented on Dr Blue’s first report of 11 June 2007.

51 On 17 October the plaintiff’s solicitor sought an extension of the offer until 29 October but the defendant’s solicitors were only prepared to extend it until 26 October.

52 The plaintiff’s solicitor received Dr Ellis’s first report on 8 November, and his further report on 14 November.

53 An extension until 29 October would not have helped the plaintiff or her solicitors because the latter did not receive Dr Ellis’s final report for another 16 days and needed further time after that to consult senior counsel and their client. The judge did not identify the minimum reasonable period and this highlights the difficulties with his finding that 31 days was unreasonably short.

54 Prima facie, given the structure of the Rules, a period of less than 28 days for this offer would not have been unreasonable. The case had been listed for trial in the September sittings, the parties had already explored settlement, the plaintiff had made an offer and the adjourned trial date was less than two months away. In Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd (No 2) [2008] NSWCA 85 (Kooee) para [20] in considering an offer made the day before the trial Basten JA said, with the concurrence of Giles and Tobias JJA:

“In considering whether the time allowed for acceptance is reasonable in all the circumstances … three factors come into play. The first is that both parties may reasonably be expected to have a clear perception of the strengths and weaknesses of their positions so that the reasonableness of a particular offer may be speedily assessed …”

55 The defendant’s solicitors were not aware that the plaintiff’s senior counsel had advised her solicitors to obtain a report from an orthopaedic surgeon when they made their offer.

56 The question of reasonableness must be assessed objectively at the date the offer is made. If it was for a reasonable time when made knowledge acquired later should not make it unreasonable, although it might justify an order otherwise under UCPR 42.15A. Authority for this, if it is needed, is provided by Kooee (above). Basten JA, with the agreement of Giles and Tobias JJA said at para [22]:

“The question of reasonableness must be judged objectively, in the circumstances known, or which should reasonably have been anticipated, by both parties. In setting the time during which the offer is to remain open, the offeror must necessarily rely upon the circumstances as known to it, or which should reasonably be anticipated by it. The actual circumstances of the recipient, unknown to the offeror, may be relevant to an application that the Court otherwise order in relation to costs of a valid unaccepted offer.”

57 In my judgment a 28 day offer made on the day the case was marked not reached and adjourned to the next sittings a little under two months away, cannot, judged objectively be characterised as unreasonable. The primary judge erred in taking into account matters not known to, or reasonably to be anticipated by, the defendant solicitors when they made their offer.

58 If my view had prevailed this Court would have had to exercise the discretion under the UCPR 42.15A and consider whether it should otherwise order. I see no reason for making an order to displace the prima facie operation of the rules. The problem with the plaintiff’s medical evidence had existed for some time prior to 25 September. The defendant’s solicitors had served Dr Blue’s first two reports on 14 August and 11 September. They served Dr Matheson’s first two reports on 7 March and 6 September. Dr Blue’s second report, all of 12 lines, served on 11 September was a reply to Dr Hopcroft’s report of 17 August and did not add to his earlier report. Dr Matheson’s second report responded to Dr Hopcroft’s reports of 10 May 2005, 20 February and 17 August 2007. Dr Matheson agreed with Dr Hopcroft’s first report, did not disagree with his second, but disagreed with the opinions in the third about the length of the plaintiff’s future working life and the risk of further surgery. In effect he joined issue on those questions. Thus the problems for the plaintiff dated from March in the case of Dr Matheson and August in the case of Dr Blue.

59 The plaintiff failed to recover more than the offer because the defendant’s video film significantly damaged her credit. As the trial judge said “any tribunal of fact should be very cautious in accepting fully her account of her incapacity or the degree of her pain”. She claimed $276,000 for future economic loss, supported generally by Dr Ellis, but the judge awarded $120,000. Her claim of $170,000 for future care of 7 ½ hours a week (Dr Ellis said at one point, as the judge noted, that she needed 14 hours) was allowed at five hours for $100,000.

60 In these circumstances the need to obtain Dr Ellis’s report cannot be a valid reason for making an order displacing the prima facie operation of UCPR 42.15A. There is nothing “exceptional” in this case to displace the general rule: Hillier v Sheather (1995) 36 NSWLR 414, 422 per Kirby P. The fact that it was “reasonable” for the plaintiff and her advisers to wait until they received Dr Ellis’ report is not a ground for displacing the general rule: New South Wales Insurance Ministerial Corporation v Reeve (1993) 42 NSWLR 100, 102 per Gleeson CJ; applied by Mason P in Morgan v Johnson (1998) 44 NSWLR 578, 582.

61 In my judgment therefore leave should have been granted and the appeal allowed.

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