Smith v Brambles Australia Ltd - [2011] NSWSC 1518

Supreme Court

New South Wales

Medium Neutral Citation: Smith v Brambles Australia Ltd [2011] NSWSC 1518
Hearing dates: 18 November 2011
Decision date: 09 December 2011
Jurisdiction: Common Law
Before: Schmidt J
Decision:
As Concerns the First Defendant ('Brambles'):
1. Verdict and Judgment in favour of the Plaintiff against the First Defendant ('Brambles') for damages ($784,254.26) and interest ($42,818.00) in the sum of $827,072.26.
2. On the First Cross-Claim Verdict and Judgment in favour of Brambles against the Second Defendant ('Baden') in the sum of (45% x $827,072.26) $372,182.51.
3. On the Third Cross-Claim Verdict and Judgment in favour of Brambles as against the third Defendant ('Gillespies') in the sum of (20% of $520,785.00) $104,157.00.
4. Brambles to pay the Plaintiff's costs on a party/party basis.
5. In any event, the total liability of Brambles on the Second and Fourth Cross-Claims is not to exceed (35% of $827,072.26) $289,475.29, plus costs.
As Concerns the Second Defendant ('Baden')
6. Verdict and Judgment in favour of the Plaintiff against the Second Defendant ('Baden') for damages ($784,254.26) and interest ($42,818.00) in the sum of $827,072.26.
7. On the Second Cross-Claim Verdict and Judgment in favour of Baden against Brambles in the sum of (35% x $827,072.26) $289,475.29.
8. On the Fifth Cross-Claim Verdict and Judgment in favour of Baden as against Gillespies in the sum of (20% of $520,785.00) $104,157.00.
9. Baden to pay the Plaintiff's costs on a party/party basis.
10. In any event the total liability of Baden on the First and Fourth Cross-Claims is not to exceed (45% of $827,072.26) $372,182.51, plus costs.
As Concerns the Third Defendant ('Gillespies')
11. Verdict and Judgement in favour of the Plaintiff as against the Third Defendant ('Gillespies') for damages in the sum of $520,786.00.
12. Gillespies is to have credit for payments made to for or on behalf of the plaintiff pursuant to the Workers Compensation Act 1987 in the sum of $194,245.29.
13. The Plaintiff otherwise is to repay the Third Defendant's workers compensation insurer Gallagher Bassett Services Pty Ltd pursuant to section 151Z(1)(b) the sum of $194,245.29.
14. On the Fourth Cross-Claim Verdict and Judgment in favour of Gillespies as against Brambles in the sum of (35% of $520,785.00) $182,274.75.
15. On the Fourth Cross-Claim Verdict and Judgment in favour of Gillespies as against Baden in the sum of (45% of $520,785.00) $234,353.25.
16. In any event the total liability of Gillespies on the Third and Fifth Cross-Claims is not to exceed (20% of $520,785) $104,157.00 which, taking into account repayment of Workers Compensation, provides for a net repayment to Gillespies or to Gallagher Bassett Services Pty Limited of $90,088.29.
17. Gillespies to pay the Plaintiff's costs in accordance with provisions of the Workers Compensation Act 1987 and Workplace Injury Management Act 1998 as assessed or agreed.

Catchwords: PROCEDURE - costs - departing from the general rule - whether indemnity costs order should be made - offers of compromise - Calderbank offers - orders
Legislation Cited: Civil Procedure Act 2005
Workers…

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.

Continue reading Smith v Brambles Australia Ltd

Details

AGLC: Smith v Brambles Australia Ltd [2011] NSWSC 1518
Case: [2011] NSWSC 1518
Decision Date: 09 December 2011

CaseChat Overview and Summary

Smith brought an action against Brambles Australia Ltd seeking damages for personal injury. The parties entered into a series of negotiations where Smith made offers of compromise. Brambles did not accept any of these offers and the matter proceeded to trial. At trial, Smith was successful and the court awarded damages to Smith. Brambles applied for an order that Smith pay their costs on an indemnity basis, arguing that Smith's conduct in making the offers of compromise warranted such an order. Smith opposed this application.

The court was required to determine whether the conduct of Smith in making the offers of compromise was such that it warranted an order for indemnity costs. The court considered the relevant principles concerning offers of compromise and indemnity costs. The court noted that offers of compromise made under r 46.02 of the Federal Court Rules may have a bearing on the assessment of costs but the fact that an offer of compromise was made does not of itself warrant an order for indemnity costs. The court also considered the relevant case law on the issue.

The court concluded that Smith's conduct in making offers of compromise did not warrant an order for indemnity costs. The court found that the offers of compromise were reasonable and made in good faith and that the making of such offers did not amount to oppressive, vexatious or frivolous conduct. The court further found that there was no other conduct by Smith that warranted an order for indemnity costs. The court therefore dismissed Brambles' application for indemnity costs. The court did, however, make an order that Smith pay Brambles' costs of the application on an indemnity basis.

Orders