Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98
Hearing dates:
6 - 7 February 2014
Decision date:
03 April 2014
Before:
Emmett JA at [1]; Gleeson JA at [7]; Tobias AJA at [252]
Decision:
Appeal - 2013/13214
(1) Appeal allowed in part (in relation to the indemnity costs order on and from 18 August 2011 based on the Calderbank offer).
(2) Appeal otherwise dismissed.
(3) Set aside order 2 made by the primary judge on 14 May 2013.
(4) Amend order 3 made by the primary judge on 14 May 2013, by deleting the words "Without prejudice to the earlier order by reason of the Calderbank offer, and in the alternative, but in the circumstances with no effect so long as the earlier orders remain in effect".
(5) The respondent's notice of motion filed 24 October 2012 be dismissed with costs.
(6) Appellant to otherwise pay the respondent's costs of the appeal.
Summons for leave to appeal - 2012/334491
(1) The applicant to pay the respondent's costs of the summons.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:
COSTS - Indemnity costs order based on a Calderbank offer DAMAGES - Measure and remoteness of damages in actions for tort - Measure of damages - Personal injuries - Future Economic Loss and Past Gratuitous Care - Sections 13 and 15 of the Civil Liability Act EVIDENCE - General - Whether inference open from failure to call witness - Whether Court improperly applied the rule in Jones v Dunkel JUDGES - Grounds of review - Procedural fairness - Bias - Actual and/or apprehended bias - Whether judge indicated prejudgment TORTS - Negligence - Essentials of action for negligence - Duty of Care - Whether there was a breach of duty - Section 5B of the Civil Liability Act TORTS - Negligence - Essentials of action for negligence - Damage - Causation - Whether the (assumed) breach of duty was a necessary condition of the occurrence of harm - Section 5D of the Civil Liability Act PROCEDURE - When appeal lies - By leave of court - Threshold monetary value less than $100,000 - Objection to Competency of appeal under r51.41 Uniform Civil Procedure Rules - Right of appeal to Supreme Court under Section 127(2)(c) of the District Court Act PROCEDURE - Adducing expert evidence - r31.28 Uniform Civil Procedure Act - Late filing and service of expert reports
[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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AGLC
Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98
Case
[2014] NSWCA 98
Decision Date
CaseChat Overview and Summary
The appeal concerned a dispute arising from an incident at the respondent's premises where the appellant, Ms Reid, suffered personal injuries. The primary judge had made orders regarding the assessment of costs, including an indemnity costs order against Ms Reid based on a Calderbank offer. Ms Reid appealed against findings on liability, causation, the hypothetical quantification of damages, and the indemnity costs order. She also challenged the primary judge's decisions on grounds of actual or apprehended bias. The appeal was heard in the Court of Appeal of New South Wales, with Emmett and Gleeson JJA and Tobias AJA presiding.
The legal issues before the Court of Appeal included whether the primary judge erred in finding no breach of duty or causation under sections 5B and 5D of the Civil Liability Act, and whether the hypothetical quantification of damages was incorrect. Crucially, the court had to determine the validity of the indemnity costs order made by the primary judge based on the Calderbank offer, and whether the primary judge had demonstrated actual or apprehended bias. Additionally, the court considered a preliminary objection to the competency of the appeal, arguing that the monetary value in issue was less than $100,000, and a summons for leave to appeal concerning an evidentiary ruling and interlocutory costs orders.
The Court of Appeal allowed the appeal in part, specifically in relation to the indemnity costs order made on and from 18 August 2011, which was based on the Calderbank offer. The appeal was otherwise dismissed. The court set aside one of the primary judge's orders and amended another, removing specific wording related to the alternative costs order. The respondent's notice of motion to dismiss a summons for leave to appeal was dismissed with costs. The appellant was ordered to pay the respondent's costs of the appeal, except in relation to the successful part of the appeal concerning the indemnity costs order. The summons for leave to appeal was dismissed, with the appellant ordered to pay the respondent's costs of that summons. The objection to the competency of the appeal was dismissed.
Orders
Orders of the court
Appeal - 2013/13214
(1) Appeal allowed in part (in relation to the indemnity costs order on and from 18 August 2011 based on the Calderbank offer).
(2) Appeal otherwise dismissed.
(3) Set aside order 2 made by the primary judge on 14 May 2013.
(4) Amend order 3 made by the primary judge on 14 May 2013, by deleting the words "Without prejudice to the earlier order by reason of the Calderbank offer, and in the alternative, but in the circumstances with no effect so long as the earlier orders remain in effect".
(5) The respondent's notice of motion filed 24 October 2012 be dismissed with costs.
(6) Appellant to otherwise pay the respondent's costs of the appeal.
Summons for leave to appeal - 2012/334491
(1) The applicant to pay the respondent's costs of the summons.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
The respondent sought a special costs order against both the appellant and her solicitors. Following a further hearing, the primary judge made indemnity costs orders against both of them: Reid v Commercial Club (Albury) Ltd and Gerard Malouf and Partners (District Court of NSW, Gibb DCJ, 14 May 2013 (Costs Judgment). Relevantly to this appeal, the primary judge ordered the appellant to pay the respondent's costs of the proceedings assessed on an ordinary basis up to and including 17 August 2011, and on an indemnity basis thereafter having regard to the terms of a Calderbank offer. Her Honour made a further order, purportedly in the alternative but expressed to be of no effect so long as the first cost order remained in effect, that the appellant pay the respondent's costs of the proceedings assessed on an ordinary basis up to and including 21 May 2012, and on an indemnity basis thereafter based on an offer of compromise under r 20.26 of the Uniform Civil Procedure Rules 2005 (UCPR). Her Honour ordered the appellant to pay (on an indemnity basis) the costs of the application for a special costs order. Ms Reid appeals against both decisions, disputing the findings on liability that there was no breach of duty and no causation, and challenging the primary judge's hypothetical quantification of damages and the indemnity costs order based on the Calderbank offer. Ms Reid also challenges the decisions of the primary judge on the grounds of demonstrated actual bias during the hearing, or actual bias or apprehended bias in the judgments themselves. Before the Court on the hearing of the appeal were a number of motions. First, a motion by the appellant seeking leave to file a third further amended notice of appeal. Leave was granted to file this document, excluding appeal grounds 21 and 22, which were not pressed. Secondly, there were two motions by the respondent, one seeking to strike out the notice of appeal on the grounds of competency (because the amount in issue was said to be less than $100,000), and the second, in related proceedings, seeking to dismiss a summons for leave to appeal which was said to be otiose. The summons for leave to appeal had been filed by Ms Reid on 26 October 2012 in respect of an evidentiary ruling on 20 June 2012 admitting a report of Dr Cooke dated 1 June 2012 (the Cooke report), and certain interlocutory costs orders made on 21 June 2012 and 15 October 2012. The Court reserved its decision on the competency objection and indicated that it would deal with this objection concurrently with the appeal. For the reasons given below, the competency objection fails. The Court dismissed the summons for leave to appeal and reserved the question of costs. For the reasons given below, the appellant should pay the respondent's costs of the summons. The appellant attended an awards night function organised by the Master Builders Association at the respondent's premises on 18 June 2010. The primary judge recorded that the function was held in an auditorium, with patrons seated at tables near a dance floor, and presentations were made at a stage area created at the front of the dance floor. The dance floor was about 170mm lower than the adjacent floor, where the appellant was seated, and bounded by a railing which was lit with what were referred to as bud lights with gaps allowing entry/exit on each side, there being six entries in all, three on each side of the dance floor, one with a ramp (Judgment at 1).