Singh v Care

[2013] VSC 163

Do Not Send for Reporting
IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT WANGARATTA

COMMON LAW DIVISION

No. S CI 2010 05321

JOHN RICHARD SINGH	Plaintiff
v
JOSHUA CARE & ANOR	Defendants

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JUDGE:	BEACH J
WHERE HELD:	Shepparton
DATE OF HEARING:	10 April 2013
DATE OF JUDGMENT:	10 April 2013
CASE MAY BE CITED AS:	Singh v Care & Anor
MEDIUM NEUTRAL CITATION:	[2013] VSC 163

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PRACTICE AND PROCEDURE – Offer of compromise – Costs – Proceeding for personal injuries – Acceptance of offer of compromise – Cost consequences – Exercise of court’s discretion – Supreme Court (General Civil Procedure) Rules 2005, r 26.03(7).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T.S. Monti SC with Mr M.W. Seelig	Nevin Lenne & Gross
For the Defendants	Mr R.H. Stanley	Moray & Agnew

HIS HONOUR:

1. The circuit in which this proceeding was listed for trial commenced on Monday 8 April 2013.  This case was the third case in the list.  Pursuant to orders previously made, each case in the list was required to be mediated at the commencement of the circuit.

1. On the first day of the circuit, the plaintiff accepted a defendants’ offer of compromise made on 27 March 2013.  The issue now in dispute between the parties concerns the costs between 27 March 2013 and 8 April 2013.

1. Rule 26.03(7) relevantly provides:

Upon the acceptance of an offer of compromise …, unless the court otherwise orders, the defendant shall pay the costs of the plaintiff in respect of the claim up to and including the day the offer was served.

1. The point between the parties is neatly encapsulated in an affidavit sworn by the defendants’ solicitor, Mr Michael Martin.  Mr Martin deposes:

The defendants respectfully submit that this is not an appropriate case for the court to exercise its discretion to deviate from the usual costs order that flows from the acceptance by a plaintiff of a defendant’s offer of compromise.

1. Mr Martin’s affidavit (and indeed the defendants’ argument) is predicated upon an assumption that r 26.03(7) requires the Court to “otherwise order” before the plaintiff can be entitled to his costs after the service of the offer of compromise. This assumption is wrong. It has authoritatively been held to be wrong on many occasions since McGarvie J delivered judgment in Malliaros v Moralis.[1]  In Malliaros, McGarvie J said:[2]

In my opinion, r 26.03(7) is a rule which operates effectively within the area in which it intends to operate – that is up to the time of service of the offer. It does not make provision for the costs after service of the offer.  Many considerations may be relevant to that period and the position is left to the ordinary discretion of the trial judge as to costs:  see Supreme Court Act 1986, s 24(1), and r 63.02. (emphasis added.)

[1][1991] 2 VR 501.

[2]Ibid [504].

1. As has also been repeatedly said, it would operate against the policy of Order 26 if a plaintiff faced the prospect of incurring costs for up to 14 days before the acceptance of an offer, especially in the case of a defendant serving an offer of compromise shortly before the commencement of or during a trial.[3]  In short, the submission on behalf of the defendants that, upon acceptance of a defendant’s offer of compromise by a plaintiff, such plaintiff does not usually get any costs after the service of the offer of compromise upon him or her, is also wrong.

   [3]Cf Elliott v The Age Company Limited [2006] VSC 358 (Bongiorno J).

1. The offer of compromise in this case was served very shortly before trial.  Easter intervened between the service of the offer and its acceptance.  Acceptance was made, within time, on the first day of the circuit.  The proceeding was not entirely without complexity.  All of the matters that need to be taken into account point to a conclusion that the plaintiff should have his costs up to and including 8 April 2013.

1. I will hear the parties as to the costs of and incidental to the present dispute.