Shergold v Edwards
[2016] WADC 150 (S)
•12 OCTOBER 2016
SHERGOLD -v- EDWARDS [2016] WADC 150 (S)
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WADC 150 (S) | |
| Case No: | CIV:2290/2010 | ON THE PAPERS | |
| Coram: | STAUDE DCJ | 12/10/16 | |
| PERTH | 21/12/17 | ||
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Defendant entitled to costs from date of offer of compromise | ||
| PDF Version |
| Parties: | MERRY SONDANG SHERGOLD NORMA CAROLINE EDWARDS |
Catchwords: | Costs Assessment of damages for personal injury Order 24A offer to compromise Judgment less favourable than offer |
Legislation: | Rules of the Supreme Court 1971 O 24A |
Case References: | Calderbank v Calderbank [1975] 3 All ER 333 Ford Motor Company of Australia Ltd v Lo Presti [2009] WASCA 115 Hillier v Sheather (1995) 36 NSWLR 414 Houatchanthara v Bednarczyk [1996] NSWCA 486 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
DECISION : 21 DECEMBER 2017 FILE NO/S : CIV 2290 of 2010 BETWEEN : MERRY SONDANG SHERGOLD
- Plaintiff
AND
NORMA CAROLINE EDWARDS
Defendant
Catchwords:
Costs - Assessment of damages for personal injury - Order 24A offer to compromise - Judgment less favourable than offer
Legislation:
Rules of the Supreme Court 1971 O 24A
Result:
Defendant entitled to costs from date of offer of compromise
Representation:
Counsel:
Plaintiff : In person
Defendant : Mr C C Rimmer
Solicitors:
Plaintiff : Not applicable
Defendant : Spark Helmore Lawyers
Case(s) referred to in judgment(s):
Calderbank v Calderbank [1975] 3 All ER 333
Ford Motor Company of Australia Ltd v Lo Presti [2009] WASCA 115
Hillier v Sheather (1995) 36 NSWLR 414
Houatchanthara v Bednarczyk [1996] NSWCA 486
1 STAUDE DCJ: In reasons for decision which were delivered on 12 October 2016 I found that the plaintiff was entitled to damages for non-pecuniary loss in the sum of $20,100, plus special damages to be assessed in accordance with the findings of fact set out in my reasons. The following directions were made:
1. Within 14 days, the plaintiff do file and serve an affidavit annexing documentary proof of medical and pharmaceutical expenses related to the injuries determined by the court in its reason for decision.
2. Within seven days of service of the plaintiff's affidavit, the defendant do file and serve any submissions relating to the assessment of such damages.
3. The judgment hearing be adjourned sine die to be re-listed by the court upon the determination of special damages.
2 Subsequently, the plaintiff filed an affidavit with respect to special damages. On 14 December 2016 the solicitors for the defendant informed my associate that the parties were conferring on the issue. On 22 December 2016 my associate received a signed minute of consent orders in the following terms:
1. There be judgment for the plaintiff against the defendant in the sum of $34,250.85 inclusive of all special damages.
2. Payment of the judgment be stayed pending a ruling by Staude DCJ as to the appropriate costs orders to be made.
3. The parties have liberty to apply.
3 I indorsed the minute with my fiat.
4 As no application for costs was filed by either party, this matter was not brought to my attention again until the plaintiff sent a letter to the chief judge dated 8 November 2017 requesting a decision. The plaintiff's letter set out her written submissions in relation to costs that had been sent to the court under cover of an email from Mr Andrew Shergold on 17 March 2017. I have only been made aware of this document since receiving the plaintiff's recent letter. There was no accompanying motion for costs. No motion for costs had been filed by the defendant.
5 On 7 December 2017 my associate wrote to the solicitors for the defendant enclosing a copy of the plaintiff's letter dated 8 November 2017 and my associate’s response to it. The letter indicated that any motion for costs by the defendant should be lodged within seven days and accompanied by an outline of submissions.
6 By letter dated 13 December 2017 the defendant's solicitors indicated that the defendant sought orders as follows:
1. The defendant pay the plaintiff's costs up to 15 November 2012 to be taxed.
2. The plaintiff pay the defendant's costs from 15 November 2012 to be taxed.
7 In the interests of expedition, I will deal with that letter as an application, while observing that a motion for costs, if not made orally in court, should be lodged in proper form together with any supporting affidavit. In this case, the letter enclosed an affidavit by Mr Christopher Rimmer, the defendant's solicitor, sworn 13 December 2017 and an outline of submissions. The affidavit of Mr Rimmer states that on 25 July 2017 he sent an email to the plaintiff enclosing a minute of consent orders as follows:
1. The defendant file and serve any outline of submissions in relation to the appropriate costs orders to be made in this action by Friday, 4 August 2017.
2. The plaintiff file her outline of submissions as to the appropriate costs order to be made in this action by Friday, 25 August 2017.
3. The question of the appropriate costs orders to be made be listed for hearing before his Honour not before 1 September 2017.
8 Mr Rimmer further states that on 29 July 2017 he received an email from the plaintiff stating that she declined to sign the minute of consent orders, stating that she did not have the legal capacity to represent herself in the matter.
9 Mr Rimmer also deposes to the fact that the plaintiff's former solicitors, Ilberys Lawyers, were served with an O 24A offer to compromise under cover of a letter dated 15 November 2012. The offer of compromise is stated to be for $35,000 damages. The covering letter states that the offer included all special damages and would remain open for acceptance for 28 days. The affidavit also annexes a letter from Ilberys Lawyers dated 23 November 2012 acknowledging service of the offer of compromise.
10 The defendant submits that the award of $34,258.25 was no more favourable than the offer of compromise and that, accordingly, pursuant to O 24A r 10(5), the plaintiff is liable to pay the defendant's costs from the date of the offer.
11 As at the date of the offer of compromise O 24A r 10(5) provided:
Where an offer is made by a defendant and not accepted by the plaintiff, and the plaintiff obtains judgment on the claim to which the offer relates no more favourable to him and the terms of the offer, then, unless the court otherwise orders, the plaintiff shall be entitled to an order against the defendant for his costs in respect of the claim up to and including the day the offer was made, taxed on a party and party basis, and the defendant shall be entitled to an order against the plaintiff for his costs in respect of the claim thereafter, taxed on a party and party basis.
12 (Order 24A has since been amended to provide by r 10(7A) that if the court is satisfied that the failure by the plaintiff to accept the offer made by the defendant was unreasonable, the defendant's costs are taxed to be on an indemnity basis, unless the interests of justice require otherwise.)
13 An offer to compromise made pursuant to O 24A may be distinguished from a Calderbank offer (Calderbank v Calderbank [1975] 3 All ER 333 (EWCA). A Calderbank offer will not justify an award of indemnity costs unless its rejection was unreasonable and the party who makes theoffer which is rejected bears the onus of satisfying the court it should make an order of indemnity costs in his or her favour: Ford Motor Company of Australia Ltd v Lo Presti [2009] WASCA 115 [17], [21].
14 Pursuant to O 24A r 10(5) where a plaintiff obtains a judgment which is no less favourable than the offer of compromise, it is only in an exceptional case that the costs consequences provided by that rule would not follow. As Clark JA observed in Houatchanthara v Bednarczyk [1996] NSWCA 486 (following Hillier v Sheather (1995) 36 NSWLR 414) in relation to an analogous rule:
It is clear that if the rule operates, the plaintiff will be significantly disadvantaged, but that disadvantage flows naturally from the risks of mitigation ... Where an offer is made by a defendant to a plaintiff, the latter is placed on notice that unless he or she accepts that offer, there is a significant risk that the order provided for by the rule may follow. In declining to accept the offer, the plaintiff takes the risk and the consequences that flow naturally from that risk.
15 In the same case (that involved a personal injury damages claim where the plaintiff had been offered $10,000 and had been awarded $9,224), Handley JA observed:
DCR Pt 19A r 9(6) establishes a prima facie rule which should be applied unless the unsuccessful party is able to point to special factors which justify a departure from that rule in the particular case. General factors which apply in most, if not all cases, such as hardship, and difficulty in predicting the result of the trial cannot support an exercise of the discretion in favour of the unsuccessful party.
16 The plaintiff's submissions argue that it was not unreasonable for the plaintiff to reject the defendant's offer. It is said that at the time she was not able to make a proper and informed evaluation of her case. The submissions state:
Considering the stage of the proceeding at which the offer was received, the time allowed to the offeree to consider the offer, the extent of the compromise offered, the offeree's prospects of success assessed at the date of offer, the clarity with which the terms of the offer were expressed, it was not unreasonable for the plaintiff to have rejected the offer.
17 It is further argued that the court should consider the manner of the conduct of the litigation by the defendant. It is argued that there was no basis upon which the defendant could allege that the plaintiff had any pre-existing psychiatric condition. The thrust of the submission is that the defendant conducted the defence of the claim in an oppressive manner.
18 The plaintiff's seeks an order that the defendant pay the plaintiff's costs of the action on a party and party basis, alternatively that the parties bear their own costs of the action, and in the further alternative, that the defendant pay the plaintiff's costs to 12 November 2012, being the date of the O 24A offer to compromise, and that the parties bear their own costs thereafter.
19 In the defendant's submission, the offer ought to have been accepted by the plaintiff. It was expressed in clear terms. It was more favourable than the judgment recovered. The plaintiff was legally represented at the time of the offer so it may be inferred that she was apprised of the consequences of rejecting it and the offer was made two years and nine months prior to the trial.
20 I find that there are no circumstances to be found in this case that would make it exceptional. In the area of personal injuries compensation, O 24A operates to encourage the timely resolution of litigation with consequent costs savings to the parties. It is, in effect, a simple rule, readily understandable by all litigants, that if an offer of compromise is not bettered by judgment after trial then the offeree bears the offeror's costs from the date of the offer.
21 The plaintiff's claim for damages was extravagant, unreasonable and largely unsupported by evidence. As I observed in my reasons for decision, the plaintiff had been represented by four separate firms of solicitors in the course of litigation. Even though liability for her damages claim was admitted, she proceeded to trial unrepresented.
22 Having heard the trial, I am satisfied that the defendant joined issue with the plaintiff on reasonable grounds. I am also satisfied that the conduct of the defence did not contribute unduly to the length of the proceedings. Rather, the action was made difficult by the unreasonable resistance of the plaintiff to legal advice on the merits of claim that she is bound to have received from time to time whilst she was represented.
23 There being no exceptional circumstances that would departure from the general rule, the orders for costs in this action will be as follows:
1. The defendant pay the plaintiff's costs of the action to 12 November 2012, to be taxed.
2. The plaintiff pay the defendant's costs of the action from 12 November 2012, to be taxed.
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