S v State of New South Wales (No 2)

[2009] NSWCA 236

New South Wales

Court of Appeal

CITATION:	S v State of New South Wales (No 2) [2009] NSWCA 236
HEARING DATE(S):	21, 22 and 26 May 2009
JUDGMENT DATE:	5 August 2009
JUDGMENT OF:	Beazley JA; Giles JA; Macfarlan JA
DECISION:	(1) Order that the respondent pay $1,679,936.71 to the appellant. (2) Order that the respondent pay the appellant's costs of the proceedings at first instance on the party and party basis until 7 March 2008 and from 8 March 2008 on the indemnity basis. (3) Order that the respondent pay the appellant's costs of the appeal on the party and party basis.
CATCHWORDS:	PROCEDURE - costs - whether costs of appeal to be on indemnity basis - relevance of first instance pre-judgment offers not renewed in relation to the appeal - PROCEDURE - payment of judgment entered on appeal where additional claim remitted to primary judge for assessment
LEGISLATION CITED:	Civil Procedure Act 2005 Supreme Court Act 1970
CATEGORY:	Consequential orders
CASES CITED:	Bennette v Cohen (No 2) [2009] NSWCA 162
PARTIES:	"S" (Appellant) State of New South Wales (Respondent)
FILE NUMBER(S):	CA 40396/08
COUNSEL:	R J Burbidge QC/D M Shoebridge (Appellant) P Menzies QC/P D A Mallon (Respondent) P Singleton/M England (Commissioner of Police)
SOLICITORS:	Edwards Michael Lawyers (Appellant) Crown Solicitor's Office (Respondent) Crown Solicitor's Office (Commissioner of Police)
LOWER COURT JURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S):	SC 20125/06
LOWER COURT JUDICIAL OFFICER:	Harrison J
LOWER COURT DATE OF DECISION:	9 September 2008 and 24 October 2008
LOWER COURT MEDIUM NEUTRAL CITATION:	"S" v State of New South Wales [2008] NSWSC 933; "S" v State of New South Wales (No 2) NSWSC 1116

CA 40396/08
SC 20125/06

BEAZLEY JA
GILES JA
MACFARLAN JA

WEDNESDAY 5 AUGUST 2009

“S” v STATE OF NEW SOUTH WALES (NO 2)

Judgment

: The Court delivered judgment in relation to this appeal on 17 July 2009. Matters which were left outstanding by that judgment are dealt with below.

Costs Orders

2 As it was apparent that offers of compromise had been made at first instance, no costs orders were made on 17 July 2009, pending the parties making written submissions as to the appropriate orders. Such submissions have now been made.

3 The appellant made an Offer of Compromise on 6 February 2008 whereby she agreed that she would accept the sum of $1,250,000, plus costs as agreed or assessed, in satisfaction of her claim. The offer was expressed to be open for a period of 28 days. The offer was not accepted and the hearing at first instance commenced on 19 March 2008.

4 On the morning of the first day of the hearing the respondent served an Offer of Compromise indicating a willingness to pay $500,000 plus costs in satisfaction of the appellant’s claim. The offer was expressed to be open until the appellant’s first witness was called. The offer was not accepted.

5 On 11 April 2008, whilst the hearing was in progress, the appellant made a Calderbank offer indicating that she would accept $1,300,000 plus costs in satisfaction of her claim. A period for which the offer was open was not expressed. The offer was not accepted.

6 On 9 September 2008 Harrison J delivered judgment, finding in favour of the respondent. On 17 July 2009, this Court allowed an appeal from that decision and gave judgment for the appellant in the sum of $1,679,936.71, together with such amount, if any, as may be assessed by the primary judge in respect of domestic assistance.

7 No further Offer of Compromise or Calderbank offer was made by the appellant after 11 April 2008.

8 The appellant contends that in these circumstances the appropriate costs order to be made in respect of the proceedings at first instance is that the respondent pay the appellant’s costs on the party and party basis until 7 March 2008 and from 8 March 2008 on the indemnity basis. The respondent takes no issue with this contention and the orders as sought will accordingly be made.

9 The appellant also seeks payment of her costs of the appeal on an indemnity basis, relying upon the Offer of Compromise of 6 February 2008 and the Calderbank letter of 11 April 2008 as indicating her willingness to compromise her claim. This Court has made clear on a number of occasions, most recently in Bennette v Cohen (No 2) [2009] NSWCA 162 at [51]-[55], that a pre-trial offer of compromise does not automatically affect the order for costs to be made in this Court when an appeal succeeds and the plaintiff recovers substantially more than his or her offer. Such a pre-trial offer “is still a relevant consideration but not, of itself, a determinative one” (at [52]). These comments apply equally to the Calderbank offer made in this case by the appellant during the course of the hearing at first instance.

10 In our view, the appellant’s costs of the appeal should be ordered to be paid by the respondent on the normal, party and party basis, and not on an indemnity basis. Even if the appellant had made a further offer, in similar terms to her earlier offers, after judgment had been given at first instance, we would not have ordered that her costs of the appeal be paid on an indemnity basis. Once it obtained a judgment in its favour at first instance, the respondent would not have been acting unreasonably in rejecting such an offer. Further, the facts that no further offer was in any event made by the appellant and that the element of compromise embodied in her offers of February and April was a limited one, weigh against her claim for indemnity costs of the appeal.

Payment of Judgment Amount

11 As indicated in [144] of this Court’s judgment of 17 July 2009, the appellant foreshadowed at the hearing of the appeal an application for a partial payment of the agreed judgment amount pending the assessment of the appellant’s claim in respect of domestic assistance. The application subsequently made, by way of the written submissions which have been lodged, is that the respondent pay to her by way of interim payment the sum of $1,679,936.71. This is the amount specified in order (3) of the Court’s orders of 17 July 2009. Reliance is placed by the appellant upon s 82 of the Civil Procedure Act 2005 under which the Court may at any stage of the proceedings order the defendant “to make one or more payments to the plaintiff of part of the damages sought to be recovered in the proceedings”.

12 The respondent opposes the application upon the basis that s 82 “is plainly more apt for circumstances of need arising before judgment” and that, in relation to the present application, considerations relevant to staying a judgment of this Court pending an application for special leave to appeal to the High Court of Australia should be taken into account. The respondent has indicated that it intends to apply for special leave to appeal and that upon the filing of such an application it will seek a stay from this Court.

13 In our view it is unnecessary to call in aid s 82. On 17 July 2009 the Court gave judgment for the appellant in the specified sum plus such further sum as may be assessed in respect of the claim for domestic assistance. There is no reason to regard that judgment as in any way inoperative, notwithstanding that judgment for a further sum may in due course be given by the primary judge in respect of the claim for domestic assistance. The judgment operates as an order to pay the specified sum. However, to put it beyond doubt, we will so order. When a conclusion has been reached on appeal that a party is entitled to a final judgment in a specific amount, it is plainly appropriate that an order for payment be made even though that party may become entitled to a judgment for an additional amount in due course.

14 If the respondent maintains its intention to seek special leave to appeal, it may of course apply for a stay of this Court’s judgment in the usual fashion. That application will be dealt with on its merits if and when it is made.

Confidentiality

15 As described In [146] of our judgment of 17 July 2009, the Commissioner of Police foreshadowed an application to apply to the Court for appropriate confidentiality orders in respect of the Court’s reasons for judgment, prior to their publication to the public. That application has been made and written submissions have been provided in support of it. Additionally, the appellant has applied for the removal of the prohibition on publication of her name. A pseudonym, “S”, has thus far been used in the proceedings. It is appropriate that a short oral hearing occur in relation to these applications. The applications will be heard and determined by Macfarlan JA pursuant to the powers conferred by s 46 of the Supreme Court Act 1970.

Orders

16 The following orders will be made:

(1) Order that the respondent pay $1,679,936.71 to the appellant.

(2) Order that the respondent pay the appellant’s costs of the proceedings at first instance on the party and party basis until 7 March 2008 and from 8 March 2008 on the indemnity basis.

(3) Order that the respondent pay the appellant’s costs of the appeal on the party and party basis.

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