Steen v Senton - [2017] ACTCA 5

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 Burrell v The Queen (2008) CLR 218; [2008] HCA 34 FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268; [1988] HCA 13 Lashansky v Legal Practitioners Complaints Commission [2005] WASCA 217 O’Rafferty v The Queen [No. 2] (2014) 291 FLR 93; [2014] ACTCA 52 O’Rafferty v The Queen [2015] HCASC 134 R v Lapa (No 2) (1995) 80 A Crim R 398 Senton v Steen [2012] ACTSC 127 Senton v Steen [2014] ACTSC 63 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…

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 Steen v Senton

Details

AGLC: Steen v Senton [2017] ACTCA 5
Case: [2017] ACTCA 5
Decision Date: 17 February 2017

CaseChat Overview and Summary

In *Steen v Senton*, the appellant sought to re-open an appeal to address a specific ground concerning costs, which had been previously dismissed. The appeal itself concerned substantive matters that had been heard by a three-member Court of Appeal.

The primary legal issue before the Court was whether it had the jurisdiction to re-open a perfected appeal to consider a specific ground relating to costs, particularly after the substantive appeal had been determined. A secondary issue, which arose in the context of the costs dispute, concerned the reasonableness of a *Calderbank* offer, and whether its reasonableness should be assessed at the time it was made.

The Court determined that it did not have the jurisdiction to re-open a perfected appeal to consider ground 6.4. The judges reasoned that once appeal orders are perfected, the Court's jurisdiction to alter them is generally limited, and the circumstances presented did not warrant such an exceptional intervention. Regarding the *Calderbank* offer, the Court affirmed the principle that the reasonableness of such an offer is to be assessed as at the time it was made, not with the benefit of hindsight.

Consequently, the Court refused the application to re-open the appeal to deal with ground 6.4 and made no order as to the costs of the proceedings after 6 November 2015.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.