Ryan v Eastlake Football Club Limited (No 2)
[2021] ACTSC 231
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Ryan v Eastlake Football Club Limited (No 2) |
Citation: | [2021] ACTSC 231 |
Hearing Date: | 6 August 2021 |
DecisionDate: | 17 September 2021 |
Before: | Loukas-Karlsson J |
Decision: | See [42] |
Catchwords: | COSTS – application for alternate costs order – where plaintiff was successful in substantive proceedings but received offers that exceeded awarded damages – indemnity costs – set off – Calderbank offer – offer of compromise – “unless the Court orders otherwise” |
Legislation Cited: | Court Procedure Rules 2006 (ACT) pt 2.10, rr 1002, 1011, 1833 |
Cases Cited: | Caine v Lumley General Insurance Ltd (No 2) [2008] NSWCA 109 Calderbank v Calderbank [1975] 3 All ER 33 South Eastern Sydney Area Health Service v King [2006] NSWCA 2 |
Parties: | Mark Ryan (Plaintiff) Eastlake Football Club Limited (Defendant) |
Representation: | Counsel Self-represented (Plaintiff) B Kelleher (Defendant) |
| Solicitors Self-represented (Plaintiff) Sparke Helmore (Defendant) | |
File Number: | SC 267 of 2017 |
LOUKAS-KARLSSON J:
Introduction
The defendant seeks alternate costs orders. The plaintiff, who is now unrepresented, resists the costs orders sought.
The plaintiff originally claimed damages arising from five incidents which occurred on the following dates:
(a) 18 January 2012 – the Bunnings Incident (SC 268 of 2017).
(b) 20 January 2013 – MVA 1 (SC 312 of 2017).
(c) 15 January 2014 – the Eastlake Incident (SC 267 of 2017).
(d) 31 August 2015 – MVA 2 (SC 312 of 2017).
(e) 25 January 2018 – MVA 3 (SC 510 of 2018).
The claims the subject of the hearing before the Court occupied over 20 days. On 23 December 2020, I published my judgment: Ryan v Bunnings Group Limited [2020] ACTSC 353 (Ryan v Bunnings). I made orders as to costs, with liberty to apply in respect to any alternate costs orders at [784].
In proceedings SC 267 of 2017, the defendant seeks a variation of the costs order relying on offers made on 7 December 2017 after the plaintiff had commenced proceedings against the defendant on 14 February 2017. At [781] of Ryan v Bunnings, I made the following costs orders in respect of SC 267 of 2017:
(a) Judgment is entered for the plaintiff in the amount of $57,500.
(b) Defendant to pay the plaintiff’s costs.
Plaintiff’s Claim
The relevant claim in SC 267 of 2017 occurred on 15 February 2014 when the plaintiff was involved in an incident where he was falsely imprisoned and assaulted at Eastlake Football Club.
The Offers
The defendant, by separate letters, each dated 7 December 2017, made both an Offer of Compromise pursuant to pt 2.10 of the Court Procedure Rules 2006 (ACT) and an offer pursuant to the principles in Calderbank v Calderbank [1975] 3 All ER 33 (Calderbank). Both offers were in the sum of $150,000 plus costs.
Each of the offers on their face were open for acceptance until 4PM on 22 December 2017. At the request of the plaintiff’s solicitors at the time, the offers were then in fact kept open until 5PM on 10 April 2018.
Defendant’s Application for Alternate Costs Order
The defendant seeks that the order made with respect to costs on 23 December 2020 be varied as follows:
(a) The defendant to pay the plaintiff’s costs on a party-party basis up to and including 7 December 2017; and
(b) The plaintiff to pay the defendant’s costs on an indemnity basis thereafter; and
(c) The judgment sum awarded to the plaintiff be set off against any costs owing to the defendant by virtue of these costs orders.
In the alternative, the defendant seeks that the costs order be varied as follows:
(a) The defendant to pay the plaintiff’s costs on a party-party basis up to 7 December 2017; and
(b) No order as to costs thereafter.
Calderbank Offer and Set Off
The defendant’s primary application seeks an order that the defendant pays the plaintiff’s cost up to and including 7 December 2017 and the plaintiff pay the defendant’s costs on an indemnity basis from 7 December 2017 pursuant to the Calderbank offer made on that date.
Legal Principles
The defendant noted that the authorities make clear that an application for a costs order pursuant to the Calderbank principles must be assessed by having regard to the relevant court rules, but that the Court is not constrained by those rules when exercising its discretion: Leichardt Municipal Council v Green [2004] NSWCA 341 (Leichardt Municipal Council) at [20]; Jones v Bradley (No 2) [2003] NSWCA 258 at [13]. The Court always retains discretion to decide the appropriate orders as to costs having regard to all of the circumstances before it.
In Hulanicki v Walton (No 2) [2015] ACTCA 45 (Hulanicki v Walton (No 2)), the Court of Appeal made the following observations at [11]-[16] in respect of Calderbank offers:
Despite the costs discretion conferred upon this Court (and courts generally), it is settled practice that, absent any special circumstances, a successful litigant is entitled to recover their costs from the opposing party: Oshlack v Richmond River Council (1998) 193 CLR 72 at 86; Pires v DibbsBarker Canberra Pty Limited at [92]. An order to this effect is commonly described as “costs follow the event”: Singer v Berghouse (1993) 114 ALR 521 at [5] per Gaudron J. Ordinarily, costs follow the event and are awarded on a party/party basis: r 1751 of the CPR.
However, “[t]he disposition which is ultimately to be made in any case where there are competing considerations will reflect a broad evaluative judgment of what justice requires”: Gray v Richards [No 2] [2014] HCA 47 at [2].
The acceptance of reasonable offers of compromise is in the interests of litigants and the public; it minimises the personal and financial costs to litigants and it enables the courts to focus resources on claims that are not amenable to compromise. “The non-acceptance of a Calderbank offer is a factor, in some cases a strong factor, to be taken into account on an application for indemnity costs”: Stewart v Atco Controls Pty Ltd (In Liquidation) (No 2) (2014) 252 CLR 331 at [4]. On the other hand, it is critical that litigants have ready access to justice and do not feel unreasonably constrained to compromise cases.
When a Calderbank offer has been made, the issue is whether it was unreasonable to reject the offer, considering all the circumstances of the case, including the apparent strength of each party’s case at the time that the offer was made: Quirk v Bawden (1992) 112 ACTR 1 at 6; Leichhardt Municipal Council v Green [2004] NSWCA 341 at [56]; South Eastern Sydney Area Health Service v King [2006] NSWCA 2 at [90]. In Hazeldene’s Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (2005) 13 VR 435 at [25] the Victorian Court of Appeal noted that other matters that should be taken into consideration when evaluating the reasonableness of a rejection are:
(a)The stage of the proceeding at which the offer was received.
(b)The time allowed to the offeree to consider the offer.
(c)The extent of the compromise offered.
(d)The offeree’s prospects of success, assessed as at the date of the offer.
(e)The clarity with which the terms of the offer were expressed.
(f)Whether the offer foreshadowed an application for indemnity costs in the event of the offeree’s rejecting it.
Even where it is found that a Calderbank offer should have been accepted and the offeree achieves a result that is no better than the offer, it does not automatically follow that indemnity costs will be awarded against the offeree: Evans v Braddock (No 2) [2015] NSWSC 518 at [49].
The applicant for indemnity costs bears the onus of showing that rejection of the offer was unreasonable: Evans Shire Council v Richardson (No 2) [2006] NSWCA 61 at [26]; Vizovitis v Ryan (No 2) [2014] ACTSC 301 at [17].
(emphasis added)
Plaintiff Submissions
The plaintiff made oral submissions highlighting that the offers were made in December 2017, a significant period prior to the matter proceeding to hearing in 2019 and concluding in 2020. It was submitted that at all of the expert evidence that was to be relied upon at the hearing was not known at the point the offer was made, nor was it known that the matter would occupy over 20 days for hearing. The plaintiff also noted that he did not believe that his solicitor at the time had informed him of the offer in 2017 (T4.14-21). The Court understood the plaintiff’s submissions to apply to both the Calderbank offer and the Offer of Compromise made on 7 December 2017.
Defendant Submissions
The defendant submitted that the plaintiff was the person in the position to know the reasonableness of the amount offered and the reasons why the amount offered was reasonable. It was submitted that the offer was made at a time where the estimation of the damages the plaintiff might obtain on a credible case for damages if he was successful on the contested issues of liability was reasonable.
The defendant made the following submissions in respect of the factors identified by the Court of Appeal at [14] in Hulanicki v Walton (No 2):
(a) The stage at which the offer was received.
The offer was made almost one year after the plaintiff had commenced proceedings. The defendant noted that the plaintiff had the benefit of the following material in his case:
· Business Activity Statements of his business;
· The first report of Dr Leon Le Leu dated 17 October 2016;
· The first report of Dr David Gorman of 25 October 2017;
· The first report of Dr John Bentivoglio of 16 August 2016;
· The first report of Dr Michael Delaney of 22 September 2016;
· The report of Leigh Nomchong dated 22 July 2016;
· The reports of Dr Saboisky of 22 July 2017 and Dr McDonald of 24 August 2017 had been served by the defendant.
The defendant also highlighted that the plaintiff knew of the existence of his pre-existing medico-legal reports, particularly those from Dr Griffiths, Dr Jackson, and Dr Battlay. The defendant submitted that those reports were of particular importance as the plaintiff’s medico-legal experts made concessions in cross-examination after being taken to the pre-existing reports, as set out in Ryan v Bunnings at [372]-[419]. The defendant noted that the referenced paragraphs from Ryan v Bunnings demonstrated the centrality of the plaintiff’s untrue history of the cessation of working following the Eastlake incidents which informed the opinions initially expressed by the plaintiff’s medico-legal experts.
(b) Time allowed.
The defendant submitted that the time allowed of 4 months was more than generous, in light of the Christmas- New Year period and agreeing to grant extensions when they were requested.
(c) The extent of compromise offered.
The defendant submitted that the offer was a substantial compromise, particularly given that the offer was far more than the plaintiff in fact achieved and was likely to achieve at the time it was made.
(d) The apparent strength of each party’s case at the time the offer was made.
The defendant submitted that whilst the plaintiff may have had relatively strong cases in respect of the liability for false imprisonment and an assault, the assessment of the quantum of likely damages was dependent on the true nature and extent of the plaintiff’s initial injuries, their sequalae, their effect (if any) on his work capacity, and the correct understanding of his premorbid earning capacity by reason of longstanding pre-existing injuries. It was submitted that these matters were known only to the plaintiff at the time the offer was made. The defendant asserted that the plaintiff then chose to present his case in a manner that was contradicted by objective facts known to him and by his own knowledge of his medical history.
The defendant noted that if the plaintiff had been acting reasonably, he would have had to take into account the likelihood that a damaging attack on his credibility would occur, which might seriously damage his own case on damages. It was submitted that the plaintiff would have also have had to consider the possibility that the attack on his credibility may have adversely affected his capacity to succeed on issues of liability. The defendant submitted that the relative strengths, objectively assessed at the time of the offer, were liability for the plaintiff and damages with the defendant.
(e) Clarity of the offer.
It was submitted that the offer was clearly set out in the letter dated 7 December 2017.
(f) Whether indemnity costs were foreshadowed.
The offer explicitly foreshadowed an application for indemnity costs.
The defendant noted that the authorities address the question of any unreasonable behaviour by either party that would inform the basis for the rejection of the offer. It was submitted that there was no unreasonable behaviour on the part of the defendant. The defendant submitted that there was manifestly unreasonable behaviour by the plaintiff in relation to the plaintiff’s credibility as to damages. The defendant asserted that the plaintiff’s behaviour must be a powerful reason to order the plaintiff to pay the defendant’s costs incurred after the offer on an indemnity basis.
The defendant ultimately submitted that it had discharged the onus that the rejection of the Calderbank offer occurred in circumstances where the authorities would permit the Court to exercise its discretion to make an indemnity costs order.
The defendant also submitted that if the Court was minded to make an indemnity costs order, it would also seek that the plaintiff’s entitlement to costs up to 7 December 2017 be set off against the costs made in favour of the defendant.
The defendant submitted that r 1833 of the Court Procedure Rules set out the power for the Court to order a set off of costs and referred to the NSW decisions of Ryan v South Sydney Junior Rugby League Club [1975] 2 NSWLR 660; Corbett v Nguyen (No 2) [2012] NSWSC 673 and Mainteck Services Pty Limited v Stein Heurty SA & Anor [2013] NSWSC 1165 which discuss costs judgments being set off against judgments in favour of the plaintiff. Rule 1833 states the following:
1833 Costs—set off of costs
(1) If a party entitled to be paid costs is also liable to pay costs, the registrar may—
(a) assess the costs the party is liable to pay, set off the amount assessed against the amount the party is entitled to be paid, and by order set the amount of the balance and by whom the balance is payable; or
(b) decline to make an order for costs the party is entitled to be paid until the party has paid the amount the party is liable to pay.
(2) Costs may be set off under subrule (1) even though a solicitor for a party has a lien for costs of the proceeding.
Consideration
It does not automatically follow that indemnity costs will be awarded where a Calderbank offer should have been accepted and no better result is achieved: Leichardt Municipal Council.
I must undertake the broad evaluative consideration required in this case: see Faris v Savage (No 3) [2021] ACTSC 60 at [49]-[56]. I have considered a number of factors including the stage of the proceeding at which the offer was received, being over a year before the hearing commenced. I have also considered the time allowed to consider the offer, the extent of the compromise offered, the prospects of success, and the clarity of the offer. I have additionally considered whether it was unreasonable to reject the offer. I have considered all the facts and circumstances of the case including that the plaintiff had a strong case in relation to liability.
I am not persuaded that the case for indemnity costs has been made out by the defendant. Set off does not arise.
Offer of Compromise
In the event the defendant was unsuccessful in obtaining indemnity costs on the basis of the Calderbank offer, the defendant alternatively sought a costs order pursuant to pt 2.10 of the Court Procedure Rules which concerns offers of compromise. The defendant submitted that the Offer of Compromise sent on 7 December 2017 complied with the requirements set by r 1002 of the Court Procedure Rules. Rule 1002 states the following:
1002Making offer
(1)A party may, by written notice, make an offer to another party to compromise any claim in proceedings, either in whole or in part, on stated terms.
(2)An offer under this rule must—
(a)identify—
(i)the claim or part of the claim to which it relates; and
(ii)the proposed orders for disposal of the claim or part of the claim including, if a monetary judgment is proposed, the amount of the judgment; and
(b)if the offer relates only to part of the proceedings, include a statement—
(i)for an offer by the plaintiff—stating whether the remainder of the proceedings will be abandoned or pursued; or
(ii)for an offer by a defendant—stating whether the remainder of the proceedings will be defended or conceded; and
(c)not include an amount for costs or state that it is inclusive of costs; and
(d)state that the offer has been made in accordance with this part; and
(e)state the period of acceptance.
(3)An offer under this rule may propose—
(a)a judgment in favour of the defendant—
(i)with no order as to costs; or
(ii)despite subrule (2) (c), with an order that the defendant will pay to the plaintiff a stated amount for the plaintiff’s costs; or
(b)that the costs as agreed or assessed up to the time of the offer will be paid by the person making the offer; or
(c)that the costs as agreed or assessed on a party and party basis or indemnity basis will be paid out of a stated estate or fund identified in the offer.
(4)If the offeror makes an offer before the offeree is given particulars of the offeror’s claim, and documents available to the offeror necessary for the offeree to properly consider the offer, the offeree may, within 14 days after receiving the offer give notice to the offeror that—
(a)the offeree is unable to assess the reasonableness of the offer because of the lack of particulars or documents; and
(b)if rule 1010 applies—the offeree will seek an order under rule 1010 (2).
(5)The end of a period of acceptance for an offer—
(a)for an offer made 2 months or more before the date set down for the start of the trial—must be not less than 28 days after the day the offer is made; and
(b)in any other case—must be after a period that is reasonable in the circumstances.
(6)Unless the notice of offer otherwise provides, an offer providing for the payment of money or doing of an act is taken to provide for the payment or doing of the act within 28 days after the offer is accepted.
(7)Unless the notice of offer otherwise provides, an offer is made without prejudice.
(8)A party may make more than 1 offer in relation to the same claim.
(9)Unless the court orders otherwise, an offer may not be withdrawn during the period of acceptance for the offer.
(10)A notice of offer purporting to exclude, modify or restrict rule 1010 or rule 1011 is invalid.
The defendant submitted that the Offer of Compromise satisfies the following criteria of r 1002:
· (2)(a) – the entirety of the claim is identified in the offer and specifically indicates that it was inclusive of moneys the plaintiff might be liable to pay pursuant to both Commonwealth and ACT legislation.
· (2)(c) – the offer does not include an amount for costs or state that it is inclusive of costs.
· (2)(d) – the offer states that it has been made in accordance with pt 2.10 of the Court Procedure Rules.
· (2)(e) – the offer states the period of acceptance.
· (5)(a) – the defendant noted there may be an argument that the offer on its face was not open for the period required by this subsection. However, the plaintiff sought and was granted extensions of the period in which the offer was open to be accepted until 18 April 2018, a period of four months. The defendant referred to Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd) (No 2) [2014] NSWCA 391 (Leach v The Nominal Defendant) at [34]-[39] as authority for the proposition that where the error on the face of the offer has been corrected, the offer remains efficacious. Whilst the offer on its face was not open for 28 days, the subsequent correspondence exchanged between the parties annexed to the affidavit in support of the defendant’s application establishes that the offer was open for a period of in excess of the required 28 day period.
The offer was not accepted and the consequence of non acceptance in the present matter is set out in r 1011 of the Court Procedure Rules which reads as follows:
1011Offer not accepted and judgment no more favourable to plaintiff
(1)This rule applies if an offer is made by the defendant in relation to a claim, but not accepted by the plaintiff, and the plaintiff obtains an order or judgment on the claim no more favourable to the plaintiff than the terms of the offer.
(2)Unless the court orders otherwise—
(a)if the claim is a personal injury claim—the plaintiff—
(i)is entitled to an order against the defendant for the plaintiff’s costs in relation to the claim, assessed on a party and party basis up to and including the day the offer was made; and
(ii)is not entitled to an order against the defendant for the plaintiff’s costs in relation to the claim after the day the offer was made; but
(iii)is not required to pay the defendant’s costs in relation to the claim on and from the day the offer was made; or
(b)in any other case—
(i)the plaintiff is entitled to an order against the defendant for the plaintiff’s costs in relation to the claim, assessed on a party and party basis up to the time when the defendant is entitled to costs under subparagraph (ii); and
(ii)the defendant is entitled to an order against the plaintiff for the defendant’s costs in relation to the claim, assessed on a party and party basis—
(A)if the offer was made before the first day of the trial—from the day the period for acceptance of the offer ends; and
(B)if the offer was made on or after the first day of the trial—at and from 11 am on the day after the offer was made.
(emphasis added)
The plaintiff was offered $150,000 plus costs in the Offer of Compromise. As a result of the judgment, the plaintiff is entitled to damages and interest assessed at $57,500 plus costs. That outcome is no more favourable to the plaintiff than the Offer of Compromise.
The defendant submitted that it had satisfied the requirements of the entitlement for an order pursuant to r 1011(2) of the Court Procedure Rules and the Court should make the costs order. The practical effect of r 1011 is that from the date of the offer each party is to bear its own costs.
It was submitted that the Court was able to make the orders as sought unless persuaded that the offer was either not a genuine compromise or that the Court sought in this instance make an “otherwise order”.
Consideration
The onus is on the plaintiff to demonstrate why the Court should depart from the ordinary consequence of his rejection of the offer: South Eastern Sydney Area Health Service v King [2006] NSWCA 2 at [83]; Caine v Lumley General Insurance Ltd (No 2) [2008] NSWCA 109. To justify the ordinary consequence of rejection, an Offer of Compromise clearly must have a genuine element of compromise: Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368 (Regency Media) at [16]. The defendant submitted that the offer was a genuine compromise.
The phrase “unless the Court orders otherwise” has been discussed by the NSW Court of Appeal in Regency Media. It was observed at [15] that:
… The relevant provisions of these rules do not specify that exceptional circumstances or the avoidance of substantial injustice must be established before the court will make a different order to the prima facie order for which the rules provide and, in our opinion, the rule should not be so construed. Rather, the discretion is one that has to be exercised having regard to all the circumstances of the case.
(emphasis added)
In Forge v Rewers (No 2) [2017] ACTSC 273 (Forge v Rewers (No 2)) at [27], Mossop J underlined that the provisions of pt 3.10 of the Court Procedure Rules concerning costs consequences are ‘identical to that in the equivalent New South Wales Rules’.
Leach v The Nominal Defendant (No 2) is also relevant in this context. It was made clear that the prima facie position should only be departed from for proper reasons, which in general arises only in an exceptional case. Nevertheless, there should not be an impermissible “gloss on the language” that is not apparent in the text. At [45]-[47] the NSW Court of Appeal stated:
Accordingly, the question is whether, as the appellant submits, the Court should "order otherwise": UCPR 42.15A(2). The onus is on the appellant to demonstrate why the Court should depart from the consequence of his rejection of the Offer: Caine v Lumley General Insurance Ltd (No 2) [2008] NSWCA 109 (at [35]) per McColl JA (Mason P and McClellan CJ at CL agreeing); Miwa (at [16]).
There is a conflict in decisions of this court as to whether exceptional circumstances are required before the court may exercise the discretion to "order otherwise" in relation to an unaccepted offer of compromise or whether that discretion has to be exercised having regard to all the circumstances of the case: Commissioner of Taxation v Moodie [2014] NSWCA 59; (2014) 282 FLR 453 (at [64]) per McColl JA.
An "exceptional circumstances" test could be seen as a gloss on the language of the relevant rules their text does not admit. That suggestion was discounted by Hely J in relation to the like power to "otherwise order[s]" in O 23, r 11(4) of the Federal Court Rules 1979 (Cth) (as then in force): Port Kembla Coal Terminal Ltd v Braverus Maritime Inc (No 2) [2004] FCA 1437; (2004) 212 ALR 281 (at [17]). Rather, his Honour was of the view that such language merely "convey[s] that the prima facie position should only be departed from for proper reasons which, in general, only arise in an exceptional case". In my view his Honour's observation sufficiently encapsulates the approach to be adopted in the present case.
(emphasis added)
In a similar vein in Forge v Rewers (No 2) Mossop J stated at [29]:
The use of an expression such as “exceptional circumstances” is thus not to be treated as an impermissible gloss on the language but rather a practical explanation of the predicament facing the offeree in the light of the obvious purpose of the Rules to encourage settlement of the proceedings and their structure in so far as they provide a default position which cannot be ignored when exercising that discretion. This was made clear by Doyle CJ in Shaw v Jarldorn [1999] SASC 529; 76 SASR 28 at [4]:
The power to “order otherwise” confers upon the Court an unfettered discretion. But it is a discretion which, if exercised, is exercised to displace what will otherwise be the required effect of [the relevant rule], which is that the defendant pay the whole of the plaintiff’s costs of action as between solicitor and client. In other words, it will be proper for the court to order otherwise only if, in the exercise of that wide discretion, there is good reason to order that the rule is not to have its usual effect. In considering whether there is good reason to so order, it is necessary to bear in mind the manner in which the rule operates, and the context in which it operates.
The defendant emphasised that a determinative feature of addressing the reasonableness of the non-acceptance was the Court’s finding that the plaintiff is a person with serious credibility issues generally. Particularly in relation to the Eastlake incident, the plaintiff was a person who could not be accepted in respect of most aspects of his claims for damages in the absence of independent and objective corroboration. The plaintiff gave contradictory answers in his oral evidence and in histories to medico-legal practitioners about the existence of physical and psychiatric sequelae from the assault and their alleged impact of those on his capacity to work.
It was highlighted that the time for assessing the reasonableness of the offer is at the time when the offer was made, that is on 7 December 2017. The defendant submitted that the findings made by the Court established that the plaintiff was in fact working contrary to his assertions otherwise: Ryan v Bunnings [45]-[81]. There was a stark contradiction between the plaintiff’s asserted losses and the evidence from objective, contemporaneous documents being the plaintiff’s Business Activity Statements and tax returns.
The defendant submitted that the plaintiff knew he was working as at December 2017. However, he had chosen to, both prior to that date and thereafter, to give untrue evidence and untrue histories to medico-legal experts on such matters.
The defendant further submitted that the plaintiff was the only person who knew, as at December 2017, the true extent of either the existence and/ or extent of the plaintiff’s alleged physical and psychological sequelae and their impact upon his person, earning capacity and need for assistance and treatment. It was submitted that the defendant’s offer represented a very substantial compromise of its position as at December 2017 and that the plaintiff knew the offer represented far more damages than he had suffered as at that time. The defendant urged an inference that the non-acceptance of the offer by the plaintiff was done in the context of his own knowledge of his actual work and income as a chiropractor. The plaintiff was determined to unreasonably persist with his unmeritorious claim for consequential damages regardless of any offer made that did not amount to a capitulation to his own position.
The defendant submitted that the offer was made at a time when liability remained in issue and it was submitted the offer represented a double compromise in that there was a compromise on the question of liability and on the assessment of damages. I am not persuaded of the double compromise submission. In my view liability was clear: see the defendant’s submissions referred to in this judgment above at [15(d)].
The defendant ultimately urged the Court to find that there is no basis to exercise the Court’s discretion to deprive the defendant of the costs order available pursuant to r 1011 of the Court Procedure Rules.
As noted at [14] above, the plaintiff’s oral submissions were made in respect of both the Calderbank offer and the Offer of Compromise. The plaintiff emphasised that the offers were made in December 2017 and the hearing commenced in early 2019. The plaintiff also noted that the entirety of the expert evidence to be relied upon in the matter was not yet known when the offer was made. It was also highlighted that the hearing occupied over 20 days of hearing.
Conclusion
Rules concerning Offers of Compromise may guide a Court’s discretion. Such rules cannot govern a Court’s discretion: Leichardt Municipal Council at [8]; Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721. The onus is on the plaintiff to demonstrate why the Court should depart from the ordinary consequences of his rejection of the offer. Taking into account the legal principles and relevant facts in this case, I am not persuaded to order otherwise. The defendant has satisfied the relevant requirements for the orders sought.
Orders
In lieu of the orders made on 23 December 2020, I make the following orders:
(a) The defendant to pay the plaintiff’s costs on a party-party basis up to 7 December 2017; and
(b) The parties are to bear their own costs thereafter.
| I certify that the preceding forty-two [42] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson Associate: Rhiannon McGlinn Date: 17 September 2021 |
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