Steen v Senton
[2017] ACTCA 5
•17 February 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Steen v Senton |
Citation: | [2017] ACTCA 5 |
Hearing Date(s): | Determined on the papers |
Last submissions received: | 15 November 2016 |
DecisionDate: | 17 February 2017 |
Before: | Refshauge , Penfold and Rangiah JJ |
Decision: | 1. The application to re-open the appeal to deal with appeal ground 6.4 is refused. 2. There is no order as to the costs of the proceedings after 6 November 2015. |
Catchwords: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES –jurisdiction to deal with costs appeal – single judge or three-member Court of Appeal for substantive matter – reopening an appeal after orders perfected. COSTS – SETTLEMENT OFFER – reasonableness of Calderbank offer determined as at time of offer. |
Legislation Cited: | Civil Liability Act 2002 (NSW), s 5R Supreme Court Act 1933 (ACT), s 37J Court Procedures Rules 2006 (ACT), rr 1606, 1613 |
| Cases Cited: | Bailey v Marinoff (1971) 125 CLR 529; [1971] HCA 49 Steen v Senton (2015) 302 FLR 440; [2015] ACTCA 57 |
Parties: | Francis James Steen (Appellant) Trevor Videan Senton (Respondent) |
Representation: | Counsel Mr K Rewell SC with Mr W Fitzsimmons (Appellant) Mr A Bartley SC with Mr S Longhurst (Respondent) |
| Solicitors Curwoods Lawyers (Appellant) Porters Lawyers (Respondent) | |
File Number: | ACTCA 39 of 2012 |
Decision under appeal: | Court/Tribunal: ACT Supreme Court Before: Master Harper Date of Decision: 26 September 2014 Case Title: Senton v Steen Citation: [2014] ACTSC 249 |
THE COURT:
Introduction
The Court’s judgment on appeal
On 6 November 2015 this Court delivered judgment in an appeal against Master Harper’s decisions of 3 August 2012 and 9 April 2014 ([2012] ACTSC 127; [2014] ACTSC 63). Taken together, those decisions found the appellant liable to the respondent in negligence, assessed the respondent’s damages at $1,323,516.25, and ordered that they be reduced by 30% in recognition of the respondent’s contributory negligence. In our judgment (Steen v Senton (2015) 302 FLR 440), we upheld the appeal in part, increased the allowance for the respondent’s contributory negligence to 50%, and ordered that the costs to be allowed for the respondent’s care in a residential aged care facility be recalculated, as follows:
3.The parties provide, within seven working days, a calculation of the amount payable for care in an aged care facility in accordance with the reasons of the Court in the form of a draft order but, if not agreed, precise details of the basis on which each party’s calculation is made.
We declined to make any order as to the costs of the appeal.
Following those orders, the parties agreed on the amounts that needed to be specified in orders giving effect to our judgment as to damages. That was recorded in a letter to Penfold J’s associate dated 1 December 2015, which set out the agreed re-assessment of:
(a)the respondent’s damages (having regard to the new amount attributed to the respondent’s care in an aged care facility); and
(b)the judgment amount (having regard to the new damages amount and the new assessment of contributory negligence).
On 14 December, the solicitors for the respondent emailed to Penfold J’s associate a draft General form of order–civil proceeding, which was agreed to, also by email, by the appellant’s solicitors on 17 December, and which set out the amounts referred to in the 1 December 2015 letter. That draft set out not only the recalculated amounts as required by order 3 but also the remaining orders made on 6 November, as follows:
The Court orders that:
1.The appeal be upheld in part.
2.The judgment of the Master given on 3 August 2012 be varied by:
a.Assessing the contributory negligence of Trevor Videan Senton as 50% and reducing the damages payable by that percentage;
b.Recalculating the portion of the damages payable for care while Trevor Videan Senton is in an aged care facility.
3.That the damages as amended be assessed as follows:
General damages $240,000.00
Past treatment expenses $80,000.00
Future treatment expenses $41,500.00
Past economic loss $200,000.00
Past care $286,422.00
Future care
i.First 9 months $25,746.00
ii.Subsequent 5 years – wife $101,819.26
iii.Subsequent 5 years – carers $154,271.60
iv.Following 5.75 years –
loss of accommodation bond $38,935.46
v.Following 5.75 years – care facility $325,118.09
$645,890.41
$1,493,812.41
4.Judgment for the respondent in the sum of $746,906.21 plus funds management of $65,000.00.
5.There be no order as to the costs of the appeal.
On 18 December 2015, Penfold J made orders in chambers, by consent, setting out an assessment of the respondent’s damages, and the amount of the judgment for the respondent, to give effect of the decision of this Court.
On 23 December 2015, orders were entered in the Court Registry in the form filed by the parties.
The costs appeal ground
On 26 September 2014, the Master had made costs orders as follows:
1.The defendant pay the plaintiff’s costs up to 28 January 2009 as between party and party.
2.The defendant pay the plaintiff’s costs from 29 January 2009 on a solicitor-and-client basis.
A Further Amended Notice of Appeal filed on 24 October 2014 added a ground of appeal against order 2, as follows:
6.4His Honour erred in ordering the defendant pay the plaintiff’s costs from 29 January 2009 on a solicitor client basis.
The orders sought in relation to the Master’s costs orders were:
7.7If the Appeal is dismissed the order of Master Harper made 26 September 2014 that the appellant pay the respondent’s costs from 29 January 2009 on a solicitor client basis be set aside and that an order be made that the appellant pay the respondent’s costs from 29 January 2009 as between party and party.
7.8If the Appeal is allowed on contributory negligence, or damages or both the order of Master Harper made on 26 September 2014 ordering the appellant pay the respondent’s costs from 29 January on a solicitor client basis be set aside and the appellant be heard further in respect to costs of the hearing.
Our decision satisfied the description in 7.8 of the Further Amended Notice of Appeal – that is, we allowed the appeal on contributory negligence and in respect of one aspect of the calculation of damages.
The submissions filed by the parties before the hearing of the appeal did not address the ground of appeal relating to the costs orders, nor did they indicate that they wished to defer consideration of those grounds until the determination of the substantive matters in issue on the appeal. There was no mention of the appeal ground relating to the Master’s costs orders during the hearing of the appeal, despite at least two passing references to the Master’s separate judgment relating to costs.
For those reasons, the Master’s costs orders were not addressed in our November 2015 decision.
The appeal against the Master’s costs orders was raised by the appellant’s solicitors in the letter dated 1 December 2015 referred to at [3] above. After setting out the re-assessed amounts, the letter went on:
The parties have been unable to agree in relation to the consequential costs orders that arise from the Judgment of the Master. On 26 September 2014, the Master made the following Orders in relation to costs:
1. The Defendant (Appellant in this Court) pay the Plaintiff's (Respondent in this Court) costs up to 28 January 2009 as between party and party.
2. The Defendant pay the Plaintiff's costs from 29 January 2009 on a solicitor and client basis.
The Appellant now seeks that the costs orders of Master Harper be set aside and in lieu thereof, the following orders be entered:
(a) The Appellant pay the Respondents [sic] costs of the Supreme Court proceedings up to 25 March 2011 as between party and party;
(b) The Respondent pay the Appellants [sic] costs of the Supreme Court proceedings in relation to liability only from 26 March 2011 to 3 August 2012 on a solicitor and client basis;
(c) The Appellant pay the Respondent's costs of the Supreme Court proceedings in relation to damages only from 26 March 2011 and 9 April 2014 as between party and party.
Given that no agreement can be reached between the parties in relation to the issue of costs, the parties now respectfully request that this matter be listed for Directions before the Court for this issue to be dealt with.
On 8 December 2015, Penfold J made orders for the parties to file and serve material relating to the appeal against the costs orders, including the question whether that appeal could be heard by a single Judge exercising the jurisdiction of the Court of Appeal, and listed the matter for further mention on 17 December.
Despite having sought to revive the aspect of the appeal relating to the Master’s costs orders, the parties also pursued the finalisation of orders giving effect to the Court of Appeal’s decision on the appeal (at [4] to [6] above).
There is accordingly a question whether delivery of our judgment, or at least the subsequent entry of the orders giving effect to that judgment, concluded the appeal, such that the Court has no further jurisdiction in relation to the appeal, including that part of the appeal relating to the Master’s costs orders.
The approach of the parties
For the purposes of the appeal against the costs orders, the parties filed written submissions about the new costs orders sought (the respondent unhelpfully filed two separate documents headed “Submissions”, one consisting mainly of a “Statement of Relevant Facts” and one from counsel, neither of which referred to the other), and the parties “agreed” that this aspect of the appeal could be determined by a single Judge.
Jurisdiction to deal with the costs appeal ground
A single judge?
The appellant (with whom the respondent agreed in relation to this issue) submitted that s 37J of the Supreme Court Act 1933 (ACT) provided the necessary jurisdiction. That section is relevantly as follows:
(1)The Court of Appeal may be constituted by a single judge for hearing and deciding any of the following matters (incidental matters) in relation to an appeal:
(a)leave or special leave to appeal;
(b)extension of time to institute an appeal;
(c)leave to amend the grounds of an appeal;
(d)amendment or stay of an order of the court from which the appeal is brought;
(e)suspension of the operation of an order to which the appeal relates;
(f)including, removing or substituting a party;
(g)a consent order disposing of the appeal (including an order for costs);
(h)dismissal of an appeal or other proceeding for want of prosecution or for any other reason prescribed under the rules;
(i)dismissal of an appeal or other proceeding on the application of the appellant or other applicant;
(j)directions about the conduct of the appeal (including directions about use of written submissions and limiting time for oral argument);
(k)any other question of practice and procedure in the Court of Appeal;
(l)costs and other matters incidental to a matter mentioned in paragraphs (a) to (k).
The appellant pointed to ss 37J(1)(d) and (l) as providing the necessary jurisdiction.
We do not consider that paragraph (1)(d) is relevant in this case; if the reference to “amendment ... of an order of the court from which the appeal is brought” is interpreted to extend to substantive review of the orders of the court below, then this provision would effectively negate the need for a bench of three judges to deal with any aspect of an appeal.
As to paragraph (l), the appellant does not identify which of the matters mentioned in paragraphs (a) to (k) is the matter to which the costs issue raised by the appellants is incidental. The matter that the parties now ask the Court to address is not, on any interpretation of s 37J(l) that we can identify, “costs ... incidental to a matter mentioned in paragraphs (a) to (k)”.
The Court is satisfied that any consideration of the claim for the Master’s costs orders to be replaced must be dealt with by the Court of Appeal constituted by three judges.
A three-member Court of Appeal?
In O’Rafferty v The Queen [No. 2] (2014) 291 FLR 93 (O’Rafferty), the Court of Appeal considered the scope for re-opening an appeal where one of the appeal grounds had not been addressed (being a ground that, if successful, would have given the appellant a more favourable result). The Court concluded that there was in the circumstances no scope to re-open a criminal appeal but:
(c)that an unfinished appeal may be re-opened if the orders made on the appeal have not been perfected (at [25]); and
(d)that an order made in a civil proceeding may be set aside under r 1613(2)(e) of the Court Procedures Rules 2006 (ACT) (the Rules) if “the party who has the benefit of the order consents” (at [47]).
The High Court, noting the Court of Appeal’s conclusion “that it could not re-open the appeal in the absence of any explicit jurisdiction to do so”, granted special leave to appeal, treated the appeal as instituted and heard instanter, set aside the perfected order, and remitted the matter to the Court of Appeal for determination . O’Rafferty v The Queen [2015] HCASL 134. The High Court however had no occasion to consider the Court of Appeal’s conclusions about the scope for setting aside a perfected order made in civil proceedings.
Accordingly, because the orders made in deciding the appeal have been perfected (that is, entered in the Court Registry), we consider that we could determine the appeal against the Master’s costs order if, but only if, both parties consent to that re-opening.
Scope for re-opening the appeal
Advice to parties
On 26 August 2016, the matter was mentioned before Penfold J, who advised the parties of:
(a)the Court’s view that the costs appeal could not be dealt with by a single Judge; and
(b)the Court’s preliminary view, as explained at [23] and [24] above, that the Court would only have power to hear the costs ground of appeal if both parties consented to the matter being re-opened.
The matter was adjourned to 14 September 2016 to give the parties time to consider whether, in those circumstances, they wished to pursue the costs ground of appeal. In particular, counsel for the respondent needed to take instructions from the Public Guardian, who manages the respondent’s affairs, about whether the respondent would consent to the re-opening of the matter.
On 14 September 2016, the parties indicated that no agreement had been reached between them, and orders were made for the exchange of written submissions about whether the Court had any jurisdiction to reconvene to hear the appeal to the extent that it related to the Master’s costs orders.
Written submissions
Submissions were filed as follows:
(a)5 October 2016: Appellant’s submissions;
(b)27 October 2016: Respondent’s submissions;
(c)15 November 2016: Appellant’s submissions in reply.
Appellant’s submissions
The appellant submitted as follows:
the orders of this Court entered on 17 December 2015 did not finally dispose of the proceedings before this Court, the Appellant having brought to the Court’s attention prior to the entry of those orders the issue of the costs orders of Master Harper in the Court below. To that extent, the Appellant submits that this Court is not functus officio in relation to this issue as there remains a judicial function to be performed in relation to the proceedings; see FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268 at 289.
...
If this Court is satisfied that the judgment has been taken out, the Appellant notes that this Court has power under Rule 1613(2) of the Court Procedure Rules 2006 to set aside the orders entered on 17 December 2015 if the order does not reflect the court's intention at the time the order was made (sub-rule 2(d)) or the party who has the benefit of the order consents (sub-rule 2(e)).
The Appellant notes this Court ordered the parties to make written submissions on the issue of costs in the court below before the orders otherwise proposed were entered on 17 December 2015. It was this Court's intention as at 8 December 2015 to hear both parties on the issue of costs in the court below. That intention was not reflected in the general form of order filed by consent.
Regardless, before the orders in the general form of order were perfected, the application for this Court to deal with the costs in the court below had been made and to that extent, the Appellant submits the appeal was unfinished: see R v Lapa (No 2) (1995) 80 A Crim R 398.
...
The Appellant seeks the orders entered on 17 December 2015 be set aside. The Appellant submits this will permit justice and fairness in that:
a. It was the intention of the parties for this Court to determine the issue of costs in the court below, no submissions being made by the Respondent as to the perfection of the orders otherwise entered or that the appeal was finished;
b. This Court intended to hear the parties on the issue of costs in the court below as reflected in the order of this Court for the parties to file written submissions, such order having been made before the orders sought by consent in the general form of order were entered on 17 December 2015;
c. The Appellant will be denied procedural fairness if he is not heard on the issue of costs in the court below, the issue being a substantive determination of the Appellant's rights that may flow from this Court's determination of the appropriate reduction for contributory negligence.
The appellant also sought to rely on r 1613(2)(e), submitting that the orders that have been perfected are “largely to the benefit of the Appellant”, in that the appellant succeeded on appeal in relation to the assessment of the respondent’s contributory negligence, and that accordingly, only the appellant’s consent is required to set aside those orders.
Respondent’s submissions
The respondent submitted:
that when orders were entered on 17 December 2015 the judgment of the Court as set out in the reasons dated 6 November 2015 were [sic] perfected [and] the proceedings came to an end.
In support of this proposition, the respondent cited Bailey v Marinoff (1971) 125 CLR 529 at 530, Barwick CJ; R v Lapa (No 2) (1995) 8 A Crim R 398 at 402, Clarke JA; and O’Rafferty.
The respondent pointed out, relying on O’Rafferty, that the fact that “there remains a judicial function to be performed in relation to the proceedings” does not of itself preserve the court’s jurisdiction if the matter has been finalised by the entry of orders giving effect to the court’s judgment.
The respondent rejected the appellant’s submission that r 1613(2)(d) or (e) of the Rules provides power to set aside the order of the Court made on 17 December 2015, and relied on the discussion in Burrell v The Queen (2008) 238 CLR 218 (Burrell) at [19] and [20] of how “the Court’s intention at the time the order was made” is to be identified.
In Burrell, the plurality said:
19.The end of a court's powers to consider and determine a controversy cannot depend upon whether one party asserts that the court has made some error in the conclusion it has reached. If allegation of error in the court's orders were the criterion, there would never be an end to some disputes. And because one party's assertion of error cannot provide a sufficient criterion, a court's belief that it has recognised its own mistake can provide no useful criterion. Such a belief could provide no useful criterion because, in the end, the accuracy of the belief would have to be tested against the arguments of the parties. It follows therefore that no matter whether it is a party that alleges error, or it is the court itself which believes that it recognises its own error, a decision that an error had been made could be reached only after giving all parties an opportunity to be heard. And it is this reargument of issues that would constitute the departure from the principle of finality.
20.Identifying the formal recording of the order of a superior court of record as the point at which that court's power to reconsider the matter is at an end provides a readily ascertainable and easily applied criterion. But more than that, identifying the formal recording of the order as the watershed both marks the end of the litigation in that court, and provides conclusive certainty about what was the end result in that court.
The respondent summarised this discussion as requiring the Court’s intention to be resolved “upon the basis of the terms of the judgment delivered”.
By reference to that explanation, the respondent said that r 1613 cannot be relied on:
unless it is readily apparent from the reasons for judgment delivered on 6 November 2015 that it was the Court’s intention to further consider the issue of the costs order by Master Harper below.
The respondent further said that there was nothing in those reasons suggesting the Court’s intention to deal with the issue other than as set out in its orders.
Finally, the respondent referred to Lashansky v Legal Practitioners Complaints Commission [2005] WASCA 217 at [152], in which it was recognised that even with the consent of all parties, perfected orders should not necessarily be set aside, and to Barwick CJ’s remarks in Bailey v Marinoff at 531 about cases in which the problem for a party “derived from its own conduct or from that of persons for whom it must take responsibility”. The respondent asserted that in this case, the order that the appellant now seeks to have set aside was prepared and filed by the appellant, and accordingly any injustice caused is not such as “would justify a departure from the important principle of finality of litigation”.
Consideration
The current position seems to have emerged from misunderstandings by the parties about the procedures of this Court:
(a)in relation to the nature of a review of a costs order made at first instance after an appeal from the substantive parts of the first instance judgment has been completed; and
(b)about the process by which a court decision is perfected and becomes an enforceable order of the court.
Review on appeal of costs orders made at first instance
As noted at [11] above, although the original notice of appeal was amended in October 2014 to include a reference to the Master’s costs orders at first instance, that matter was not canvassed in submissions (written or oral) made on the appeal, and nor was the need to adjust the costs orders depending on the outcome of the substantive challenge mentioned during the appeal.
A possible explanation for this is that the parties initially expected that an adjustment to the costs orders could be agreed between them in the light of the Court’s decisions on substantive matters. This is suggested by the letter dated 1 December 2015 and quoted at [13] above, which sets out the agreed calculations as to damages but reports that:
The parties have been unable to agree in relation to the consequential costs orders that arise from the judgment of the Master.
It seems that, by that point, the parties had overlooked, or forgotten, that the costs issue had been (correctly) identified as part of the substantive appeal, and had begun to think of it as a consequential or procedural issue that could be dealt with by a single judge under s 37J of the Supreme Court Act (an assumption that came to light at the mention on 8 December 2015 and led to the making of an order that submissions about the costs issue should deal with the question whether the costs issue was in fact able to be dealt with by a single judge).
The confusion about the nature of the costs appeal presumably explains why the parties were unconcerned about finalising the outcome of the substantive appeal after the initial judgment was delivered, rather than ensuring that the original Court of Appeal went on to determine the outstanding part of the appeal first.
Entry of a court order
The entry of orders made by a judicial officer is dealt with in r 1606, which is as follows:
1606Orders—filing
(1)If a judicial officer or associate writes the date and terms of an order on a court file or document on a court file, then, unless the order is filed in the court, the writing is sufficient proof of the making of the order, its date and terms.
(2)An order of the court is filed in the court if a document embodying the order, and the date the order was made, is drawn up, settled and signed by the registrar, and filed in the court.
(3)The party in whose favour an order is made may, not later than 7 days after the day the order is made, file in the court a draft order for settling by the registrar.
NoteSee
·approved form 2.41 (General form of judgment—civil proceeding) AF2015-30
·approved form 2.42 (General form of order—civil proceeding) AF2015-31.
(4)If a draft order is not filed in accordance with subrule (3), another party to the proceeding may file in the court a draft order for settling by the registrar.
(5)If a draft order is filed in the court under this rule, the registrar—
(a)may approve the draft with or without amendment; and
(b)must enter the order on the filing of the final order in accordance with the approved draft.
(6)An order must be filed in the court if—
(a)the order is a judgment or other final order; or
(b)the court directs it to be filed; or
(c)a party asks for it to be filed.
(7)Unless an order is filed in the court—
(a)the order may not be enforced under part 2.18 (Enforcement) or by other process; and
(b)an appeal may not be brought against the order without the leave of the court to which the appeal would be made.
NotePt 6.2 (Applications in proceedings) applies to an application for leave.
(8)However—
(a)an order appropriate on default of an earlier order may be made without the earlier order being filed in the court; and
(b)costs payable under an order may be assessed without the order being filed in the court.
In summary, in a civil proceeding, r 1606(5)(b) provides that an order is entered after:
(a)a draft order is filed in the court by a party and settled by the registrar; and
(b)a final order in the form approved by the registrar is filed in the court.
As noted at [1] above, the judgment delivered by this Court on 6 November 2015 required a new calculation of the damages payable for the care of the respondent in an aged care facility, and required that calculation to be provided in the form of a draft order.
The new amount for care in an aged care facility was resolved between the parties, and on 14 December 2015, the respondent’s solicitors filed a draft General form of order–civil proceeding, which accounted for both the recalculation of the damages for care in an aged care facility and the application of an increased contributory negligence percentage, and set out all the other orders made by the Court in its decision on the appeal. On 18 December 2015, after the Court received confirmation of the appellant’s consent (required after the appellant had failed to appear at a mention on 17 December), Penfold J made orders in chambers relating to the assessment of damages and entering judgment for the respondent in the agreed sum.
The orders filed by the parties were formally entered by the registrar on 23 December 2015. Under r 1606, entry of the orders required both the filing of the draft General form of order–civil proceeding, and the receipt in the Registry of the bench sheet record of the consent orders made in chambers; unusually, the receipt of the bench sheet record followed the filing of the draft form of order, and the entry of the orders followed quickly, perhaps without the parties appreciating this consequence. Unfortunately, this meant that the orders were perfected while issues relating to how the costs issue was to be dealt with were still unresolved.
Did the orders entered reflect the Court’s intentions?
We can see no basis for finding that the orders entered on 23 December 2015 did not reflect the Court’s intention: they set out accurately orders 1, 2 and 4 made by the Court on 6 November 2015 and orders 1 and 2 made by consent on 18 December 2015. The orders did not reflect an intention to foreclose any further Court of Appeal consideration of the costs appeal but, as such, they did not do so; that outcome resulted not from the orders made by the Court but from the perfecting of those orders as set out in the draft form of order.
Conclusions
First, we note that, contrary to the appellant’s submissions, the orders were perfected on 23 December 2015, not 17 December 2015, and were perfected by steps taken in the Court Registry. What had been brought to the Court’s attention before that, in several stages, was:
(a)that the parties were seeking to agree on “the consequential costs orders that arise from the Judgment of the Master”;
(b)later, that no agreement had been reached (at [13] above); and
(c)finally, that the parties had “agreed” that the matter could be resolved by a single judge.
That is, the parties had failed to realise that the “consequential costs orders” were, in effect, a matter in contention in the appeal and could only be resolved by a resumption of the appeal hearing.
Secondly, we reject the proposition that, because the orders entered were largely to the benefit of the appellant, the matter can be re-opened with only the appellant’s consent.
Rule 1613(2) is as follows:
(2)The court may set aside an order at any time if—
(a)the order was made in the absence of a party; or
(b)the order was obtained by fraud; or
(c)the order is for an injunction or the appointment of a receiver; or
(d)the order does not reflect the court’s intention at the time the order was made; or
(e)the party who has the benefit of the order consents; or
(f)for a judgment for specific performance, the court considers it appropriate for reasons that have arisen since the order was made.
It is true that the orders that have been entered are more beneficial to the appellant than were the orders made by the Master. However, in the abstract, the current orders still provide a substantial benefit to the respondent (if setting aside the current orders reinstated the Master’s orders for the future, this would be even more beneficial to the respondent, but we do not understand that to be the proposal). Rather, the respondent is being asked to consent to the setting aside of uncontroversial or at least unchallenged orders so as to give the appellant an opportunity to obtain an additional order that would be to the respondent’s disadvantage, after which, presumably, our original orders would be reinstated. We do not consider that r 1613 permits us, with consent only from the appellant, to set aside the orders that have been entered.
Accordingly, we conclude that there is no scope for re-opening the appellant’s appeal, in order to deal with appeal ground 6.4, by setting aside the perfected orders under r 1613.
We point out, however, that the misunderstandings that have led to this outcome involved both parties, that the court files do not support the respondent’s claim that it was the appellant who prepared and filed the order that was ultimately entered, and that we have not been influenced in any way by any consideration of who was responsible for the perfecting of the Court’s orders on 23 December 2015.
The costs appeal
In the circumstances of this case, it is useful to make some comments about the costs appeal that, in our view, cannot now be heard.
The Master’s costs orders were as follows:
3.The defendant pay the plaintiff’s costs up to 28 January 2009 as between party and party.
4.The defendant pay the plaintiff’s costs from 29 January 2009 on a solicitor-and-client basis.
The challenge set out in the Further Amended Notice of Appeal filed on 24 October 2014 was, in effect, that the Master erred in making the second costs order.
Having regard to the Court of Appeal’s judgment on the Master’s substantive decision, the order sought in relation to the second costs order was that the order be set aside and the appellant be heard further as to the costs of the hearing.
The submissions that have been filed since the Court of Appeal’s first decision was handed down indicate that the appellant (defendant) seeks to have the Master’s costs orders amended to reduce the period for which it is required to pay the costs of the respondent (plaintiff) on a solicitor and client basis, and to exclude from the costs that are required to be paid on that basis the respondent’s costs relating to damages.
This claim is founded on the making of several offers of settlement by the appellant before the hearing of the matter before the Master, as follows:
Date From To Offer Mid to late December 2008 Defendant/ Appellant Plaintiff/ Respondent Calderbank Offer: $265,000. 18 December 2008 Plaintiff/ Respondent Defendant/ Appellant Offer of compromise: $1,150,000, extended to be open until 28 January 2009. 25 February 2011 Defendant/ Appellant Plaintiff/ Respondent Calderbank Offer: $475,000 plus costs. 25 February 2011 Defendant/ Appellant Plaintiff/ Respondent Calderbank Offer to settle the issue of contributory negligence at 33.33%. Offer stated to be open for acceptance for 28 days. The deadline for acceptance was later extended to 1 April 2011 at request of respondent’s solicitors, to enable further time for advice to be sought from counsel. 18 July 2011 Plaintiff/ Respondent Defendant/ Appellant Informal offer of settlement: $1,500,000 inclusive of costs.
The appellant’s submissions
The appellant relies specifically on the 25 February 2011 Calderbank offer to settle contributory negligence at 33.33%. The Master assessed the respondent’s contributory negligence at only 30%, but the Court of Appeal increased that assessment to 50%. The appellant says that the respondent did not negotiate at all about contributory negligence, and it was unreasonable for the respondent to ignore the Calderbank offer, noting that:
(a)the offer was made after the parties had exchanged experts’ reports on liability, and the basis for the allegation of contributory negligence had been made clear to the respondent;
(b)the offer was made at an appropriate stage of the proceedings, allowed adequate time for consideration by the respondent, and was in fact extended to allow it to be considered at a conference with senior and junior counsel;
(c)the offer:
was fair and reasonable and reflected not the best outcome that either party could hope to obtain if the evidence fell their way but rather a realistic assessment of what, in the circumstances, represented a fair and proper compromise.
(d)the offer was “clear and unambiguous”; and
(e)the respondent was advised by solicitors and counsel experienced in personal injuries litigation.
The respondent’s submissions
The respondent relied on the fact that our assessment of the respondent’s contributory negligence depended on the application of s 5R of the Civil Liability Act 2002 (NSW), a provision that had not been pleaded, or otherwise raised, before the Master, and was first raised on appeal. We said at [16]:
The Master delivered judgment on the issue of liability in 2012. The appellant’s argument relies on several judgments of the New South Wales Court of Appeal given in 2014. These judgments departed from earlier authorities which had consistently applied the Pennington v Norris and Anikin v Sierra approach, even after the enactment of the [Civil Liability Act]. Accordingly, it is understandable that the appellant did not take the point at the hearing below. The respondent did not suggest that he would have led any further evidence if the point had been taken at the trial. In these circumstances, the appellant should be permitted to raise the point in the appeal.
After extended consideration of the NSW cases, we concluded:
37. The reasons given by both the majority and minority judges in Chivas and Cosmidis are cogent and persuasive. The differing conclusions reflect a difference in approach to the interpretation of ss 5R and 5B of the [Civil Liability Act]. The majority in each case emphasised a purposive approach, giving effect to the legislature’s presumed intention to adopt the Ipp Report’s recommendation that motorists should not be required to keep a better lookout than pedestrians. The dissenting judge in each case placed more emphasis on the statutory language, which does not, in terms, reflect the view expressed in the Ipp Report.
38. An intermediate appellate court should not depart from a decision of an intermediate appellate court in another jurisdiction unless convinced that the decision is plainly wrong: .... This principle is particularly important where the decision concerns the interpretation of provisions that are either uniform or very similar in each State and Territory (with the exception that the Civil Law (Wrongs) Act 2002 (ACT) does not have an equivalent of s 5R of the [Civil Liability Act]). There is considerable force in the reasons of the majority in Chivas and Cosmidis, and they cannot be considered to be plainly wrong. Accordingly, there is no basis for this Court to depart from the views of the majority.
39. It follows that the Master ought to have applied ss 5R and 5B of the [Civil Liability Act] and should not have applied the approach in Pennington v Norris. In so holding, we intend no criticism of the Master, who was not pressed with the argument now made in the appeal. Having found error in his Honour’s approach, it is necessary for the Court to make its own assessment of contributory negligence.
(citations omitted)
The respondent says that:
the line of reasoning in respect of the interpretation by the NSW Court of Appeal of s 5R [of the Civil Liability Act] was a line of augment [sic] which developed in and around 2014 and which was not known nor could be reasonably known at the time of the Calderbank Offer.
Consideration
If we had heard the appeal to the extent that it related to costs, we would have agreed with the appellant that the Calderbank offer about contributory negligence was, in early 2011, a reasonable offer made in a reasonable way, but would also have agreed with the respondent that, given the emergence in NSW only in 2014 of the line of reasoning that ultimately led us to increase the contributory negligence assessment above that specified in the Calderbank offer, the respondent’s refusal of that offer was not unreasonable at the time.
Orders
Accordingly, we refuse the appellant’s application to re-open the appeal against the Master’s decision to deal with the appeal ground relating to the costs orders made by the Master. In the circumstances of this unusual case, we make no order as to the costs of the proceedings since our judgment was handed down on 6 November 2015.
| I certify that the preceding seventy [70] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Nishadee Perera Date: 17 February 2017 |
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