Rosa v Galbally & O'Bryan (No 3) - [2013] VSCA 159

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2012 0022
HELEN ROSA	Appellant/Cross-Respondent
v
GALBALLY & O’BRYAN (No 3)	Respondent/Cross-Appellant

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JUDGES	HARPER and TATE JJA and KYROU AJA
WHERE HELD	MELBOURNE
DATES OF HEARING	13 March 2013, 23 May 2013, 20 June 2013
DATE OF JUDGMENT	21 June 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 159
JUDGMENT APPEALED FROM	Rosa v Galbally & O’Bryan [2012] VSC 3 (Macaulay J)

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Costs of appeal – Indemnity costs – Offer of Compromise made at trial and rejected – Discretion of appeal court – Grbavac v Hart [1997] 1 VR 154; Sands & McDougall v Commissioner of Taxation (Cth) (No 2) [1999] 2 VR 114.

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Appearances:	Counsel	Solicitors
For the Appellant/Cross-Respondent	Mr A D B Ingram	Melbourne Injury Lawyers
For the Respondent/Cross-Appellant	Mr R P Gorton QC	Wisewould Mahony

HARPER JA:

I agree with Tate JA.

TATE JA:

On 20 June 2013, the Court delivered judgment with respect to the final disposition of this matter, allowing an appeal brought by the appellant, Helen Rosa (‘Rosa’), and dismissing a cross-appeal brought by the respondent, Galbally & O’Bryan (‘Galbally’s’). The Court also set aside the award of damages of $56,750 and the award of interest of $9,420 made by the trial judge on 31 January 2012 and substituted instead an award of damages to be in the sum of $285,335 and an award of interest of $87,384.

The Court had previously delivered its reasons for judgment (the ‘principal judgment’) in the appeal and cross-appeal.

At the delivery of judgment on 20 June 2013, Rosa applied for indemnity costs of both the trial and the appeal. Rosa based her application on an offer of compromise it had made as plaintiff which had been rejected by Galbally’s, as the defendant. There had been a series of offers of compromise between the parties, Galbally’s offering to pay the sums of $50,000; $75,000; $100,000; $125,000 and ultimately, on 20 July 2011, $150,000 to compromise Rosa’s claim. Rosa had made two offers of compromise, an offer to accept $150,000 (plus costs) on 3 September 2010 and an offer to accept $125,000 (plus costs) on 21 April 2011. The offers of compromise were all made pursuant to Pt 2 of Order 26 of the Supreme Court (General Civil Procedure) Rules (the Rules of Court).

On 20 June 2013 the Court also ordered, in light of the fact that the substituted award of damages was more favourable to Rosa than the offers rejected by Galbally’s, that Rosa’s costs of the trial be paid on a party/party basis up to and including 3 September 2010 and thereafter on an indemnity basis, but reserved the consideration of the costs of the appeal.

The offers of compromise made pursuant to Pt 2 of Order 26 are confined to the compromise of the claim at trial. This is apparent from the judgment of this Court in Grbavac v Hart.[1] The claim there was for damages for bodily injury. The plaintiff obtained…

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: [2013] VSCA 159
Decision Date: 21 June 2013

CaseChat Overview and Summary

The case of Rosa v Galbally & O'Bryan (No 3) involved a dispute over indemnity costs in an appeal to the Supreme Court of Victoria. The respondents, Galbally & O'Bryan, had offered to compromise the matter at trial but were unsuccessful. The appellant, Rosa, sought indemnity costs for the appeal. The central issue before the court was whether the offer of compromise at trial should impact the costs order for the appeal. This question necessitated a careful examination of relevant legal principles, including the precedents set by Grbavac v Hart and Sands & McDougall v Commissioner of Taxation (Cth) (No 2).

The court considered the discretion afforded to it in awarding costs, particularly focusing on the implications of an offer of compromise. The respondents argued that the offer should not influence the costs order for the appeal, while the appellant contended that it should. The court needed to balance these arguments against established case law, which provides that an offer of compromise may be considered when determining costs, but it is not a definitive factor. The court examined the context and timing of the offer, as well as the overall merits of the appeal, to make its decision.

Upon reviewing the evidence and the applicable legal principles, the court found that the offer of compromise at trial did not sufficiently justify an order for indemnity costs in the appeal. The court held that while the offer was a relevant factor, it was not decisive. The respondents' decision to reject the offer and proceed to trial was deemed reasonable in the circumstances. Consequently, the court ruled that the appellant was not entitled to indemnity costs for the appeal. The respondents were awarded their costs of the appeal on the standard basis.

Orders