The Public Trustee as Litigation Guardian for Imre Pinter v Newman - [2012] SASCFC 18

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
THE PUBLIC TRUSTEE AS LITIGATION GUARDIAN FOR IMRE PINTER v NEWMAN
[2012] SASCFC 18
Judgment of The Full Court
(The Honourable Justice Gray, The Honourable Justice Kourakis and The Honourable Justice Blue)
8 March 2012
PROCEDURE - COSTS - APPEALS AS TO COSTS - DISCRETION
PROCEDURE - COSTS - SCALES OF COSTS - SCALE APPLICABLE
Appeal against a decision of a District Court Judge with respect to an order for costs - plaintiff suffered grave personal injuries as a result of a road collision in 2005, when the plaintiff's vehicle was struck by a semi-trailer driven by the defendant - the defendant's vehicle was insured by the Victorian compulsory third party insurer - an action for negligence claiming damages and loss was instituted in 2009 and the proceedings settled on 22 October 2010, the third day of trial, following the Judge's approval of a compromise - where defendant was to pay costs and disbursements to be agreed or taxed - where parties could not agree as to the scale of costs applicable - where defendant argued that appropriate scale was that of party-party and plaintiff argued that appropriate scale was that of solicitor-client - District Court Judge ordered that plaintiff recover costs to be taxed on a party-party scale - whether Judge in error in so ordering - whether a letter sent by plaintiff to the defendant's insurer on 10 December 2008 addressing the claim for damages, amounted to a "Rule 33" notice for the purposes of Rule 33 of the District Court Civil Rules 2006 (SA) - whether an order ought to be made that the plaintiff recover interest on costs backdated to the date on which the proceedings were first issued.
Consideration of the history of Rule 33 and the principles applicable to orders for costs departing from the general rule that costs be paid on a party-party scale.
Held: appeal dismissed - no basis shown to interfere with the exercise of the discretion of the District Court Judge in ordering that the plaintiff recover costs on a party-party scale - the 10 December 2008 letter did not constitute a Rule 33 notice - the defendant did not act in a way that would justify any special order as to interest on costs backdated to the date of issues of proceedings.
District Court Civil Rules 2006 (SA) r 3, r 4, r 33, r 117 and r 264; District Court Act 1991 (SA) s 40 and s 42; District Court Rules 1992 (SA) r 6A and r 101, referred to.
Kenneally v Pouras [2007] SASC 303; John S Hayes & Associates Pty Ltd v Kimberly-Clark Australia Pty Ltd (1994) 52 FCR 201; Flinders Diamonds Ltd v Tiger International Resources Inc (No 2) [2006] SASC 180; Colgate-Palmolive Co Pty Ltd v Cussons Pty Ltd (1993) 46 FCR 225; Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; IW v City of Perth (1996) 191 CLR 1; Bartolo v Hancock [2010] SASC 305; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; Osborne v Kelly (1999) 75 SASR 392; von Doussa v Owens (No 2) (1982) 30 SASR 391; Re Former Officer of ASIO [1987] VR 875; Battiston v Maiella Construction Co Pty Ltd [1967] VR 349; Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355, considered.

THE PUBLIC TRUSTEE AS LITIGATION GUARDIAN FOR IMRE PINTER v NEWMAN
[2012] SASCFC 18
Full Court Gray, Kourakis and Blue JJ
THE COURT:

This is an appeal from the decision of a Judge of the District Court with respect to an order for costs.
Background
Imre Pinter sustained grave personal injuries when involved in a road collision on 5 September 2005. Mr Pinter’s vehicle was the subject of a heavy collision when struck by a semi-trailer driven by the defendant, David William Newman. The defendant’s vehicle was insured by the Victorian compulsory third party insurer. Mr Pinter issued proceedings through the Public Trustee acting as his litigation guardian.[1] In the proceedings, it was alleged that Mr Pinter’s injuries were caused by the negligence of the defendant.
[1] In these reasons for convenience reference is made to the appellant as either the plaintiff or Mr Pinter.
The defendant denied that he had been negligent as alleged and raised the issues of whether Mr Pinter was a driver or a passenger and whether he had been wearing a seat belt. The claimed damages were also in dispute.
The proceedings settled on 22 October 2010, the third day of trial, following the Judge’s approval of a compromise. Judgment was entered for $2,800,000.00, this amount being in addition to all amounts paid on behalf of the defendant to the date of judgment. In addition, the defendant was ordered to pay costs and disbursements to be agreed or taxed. In the event that agreement could not be reached on costs, the proceedings would be referred to the Court for further directions.
The dispute between the parties related to the scale of costs said to be applicable. The plaintiff sought costs on a solicitor-client basis. The defendant contended that the appropriate scale was that of party-party. The plaintiff contended that he had made an offer by letter dated 10 December 2008 in accordance with Rule 33 of the District Court Civil Rules 2006 (SA), that the defendant did not comply with his obligations under that Rule and that as a consequence, the Court should award costs on a solicitor-client scale. The defendant contended that the plaintiff had not complied with Rule 33, that the defendant had done so and that in any event the circumstances did not warrant an order being made for costs to be taxed on a solicitor-client scale.
The parties did not reach agreement. The Judge heard further argument and ordered that the plaintiff recover costs to be taxed on the party-party scale. The Judge concluded that the letter dated 10 December 2008 did not comply with the provisions of Rule 33:[2]
In my view, the plaintiff’s letter dated 10 December 2008 complies with Rule 33(2) except for the fact that it was sent to the TAC rather than the defendant. The letter set out a formulation of the plaintiff’s claim on both liability and quantum. It was a detailed formulation of some six pages and it annexed a number of supporting documents. It is not strictly necessary to state that the letter is an offer under Rule 33 although, had this been done, it may have avoided the confusion that has arisen in this matter. The confusion was compounded by the error in the originating process. I further note that the plaintiff did not comply with Rule 33(6)(b) by filing the asserted notice and response in a suppressed file.
…
It is my view that the provision of the notice to the defendant’s insurer is not sufficient for compliance with Rule 33(2). The plain wording of the Rule 33(2) makes it clear that the notice must be served on the defendant. If there were any doubt about that proposition, it is sufficient to note Rule 33(3) which requires a plaintiff to send a copy of the notice and accompanying materials to the defendant’s insurer in circumstances where the plaintiff is aware of the identity of that insurer. I also note that the TAC, in its letter dated 12 February 2009, informed the plaintiff’s solicitors that any proceedings should be served direct upon the defendant. This should have alerted the plaintiff’s solicitors to the need to serve the Rule 33 notice upon the defendant. The defendant was entitled to be served with the Rule 33 notice just as he is entitled to be served with the originating process.
Given the notice was not served on the defendant, it cannot be said that the defendant has not complied with Rule 33(4). Any asserted deficiencies with the response from TAC dated 12 February 2009 can hardly be said to be those of the defendant.
[2] The Public Trustee as Litigation Guardian for Imre Pinter v Newman [2011] SADC 113, [10], [14]-[15].
Statutory Provisions Concerning Costs
Section 42 of the District Court Act 1991 (SA) provided the Judge with a broad discretion as to costs. Section 42(1) is in the following terms:
Subject to subsection (2) and the rules, costs in any proceedings in the Civil Division will be in the discretion of the Court and may be awarded against any person (whether a party to or a witness in the proceedings or not).
Rule 264 of the District Court Rules is headed “basis for awarding costs” and relevantly provides:
(1)The Court may, in the exercise of its discretion as to costs, award costs on any basis the Court considers appropriate.
(2)As a general rule, however, costs are awarded as between party and party (that is, on the basis that the party entitled to the costs will be reimbursed for costs reasonably incurred by the party in the conduct of the litigation to an extent determined by reference to the scale of costs in force, under these rules or the previous rules, when the costs were incurred).
…
(4)     The Court may depart from either scale if there is good reason to do so.
Example—
The Court might allow a fee greater than allowed by the scale for a pleading if satisfied that the fee is justified by the difficulty of the case.
(5)     In exercising its general discretion as to costs, the Court may—
(a)     award costs as between solicitor and client (that is, on the basis that the party will be fully reimbursed for costs reasonably incurred by the party in the conduct of the litigation); or
(b)     award costs on the basis of an indemnity (that is, on the basis that the party will be fully reimbursed for costs incurred by the party in the conduct of the litigation except to the extent that the party liable for the costs shows them to have been unreasonably incurred); or
(c)     award costs by way of lump sum; or
(d)     award costs on any other basis the Court considers appropriate.
(6)     The Court may award different components of costs on different bases.
(7)     The Court may include in an award of costs an amount representing interest.
(8)A party who is entitled to costs, or against whom costs have been awarded, may apply to the Court to have costs, or a particular component of costs, awarded on a particular basis.
When making orders as to costs the Court may, in accordance with its Rules, make orders on a party-party basis, a solicitor-client basis or on an indemnity basis. A party, through a Rules of Court offer, may seek to establish a basis for the making of an order for costs on a solicitor-client or indemnity basis. A party may also seek such an order for costs relying on what is said to be the manner in which the other party conducted the litigation, both before and following the institution of proceedings. District Court Rule 33, to which we turn shortly, provides another ground for the seeking of a special order as to costs.
The Court’s discretion as to costs is also guided by earlier authority. It is to be accepted that care is to be taken not to circumscribe the width of the Court’s discretion as to costs.[3] The purpose of an award of solicitor-client costs is to compensate a party and not to punish the opponent. As discussed by Layton J in Flinders Diamonds Ltd v Tiger International Resources Inc (No 2):[4]
As to the principles applicable to the exercise of general discretion, the starting point is that an order for costs usually follows the event. It has also been stated that the Court ought not to depart from the rule that the successful party should have its costs on a party/party basis unless the circumstances of the case warrant the Court departing from the usual course.[5] It is to be noted that the purpose of an award for costs is to compensate and not to punish.[6] It has also been stated that there must be some special and unusual features to justify an award of solicitor and client costs.[7] At the same time it has also been stated that the category of cases in which indemnity costs can be ordered are not closed.[8]
[3]    Kenneally v Pouras [2007] SASC 303, [13]; John S Hayes & Associates Pty Ltd v Kimberly-Clark Australia Pty Ltd (1994) 52 FCR 201, 203.
[4]    Flinders Diamonds Ltd v Tiger International Resources Inc (No 2) [2006] SASC 180, [27].
[5]    Re Willcox; Ex parte Venture Industries (No 2) (1996) 72 FCR 151.
[6]    Latoudis v Casey (1990) 170 CLR 534 per Mason CJ at 543, McHugh J at 567; and Oshlack v Richmond River Council (1998) 193 CLR 72 per Brennan CJ at [1] and per McHugh J at [67]. Although this principle is somewhat modified in the case of a Rule 41 offer.
[7]    Casley-Smith v F S Evans & Sons Pty Ltd (No 6) (1989) 148 LSJS 483.
[8]    Colgate-Palmolive Co Pty Ltd v Cussons Pty Ltd (1993) 46 FCR 225.
As a general rule, costs are awarded on a party-party basis and an order for payment of other than party-party costs should only be made when the circumstances justify a departure from the general principle.[9]
[9] Colgate-Palmolive Ltd v Cussons Pty Ltd (1993) 46 FCR 225; Kenneally v Pouras [2007] SASC 303.
In Colgate-Palmolive Ltd v Cussons Pty Ltd,[10] Sheppard J, following a detailed review of the authorities, distilled a number of principles he considered to arise from the authorities, including the following:[11]
-“[T]he Court ought not usually make an order for the payment of costs on some basis other than the party and party basis. The circumstances of the case must be such as to warrant the Court in departing from the usual course.”
-“[The Court has] a general and discretionary power to award costs as between solicitor and client "as and when the justice of the case might so require".”
-“[S]ome special or unusual feature in the case [might arise] to justify the Court in departing from the ordinary practice.”
-“The categories in which the discretion may be exercised are not closed.”
[10] Colgate-Palmolive Ltd v Cussons Pty Ltd (1993) 46 FCR 225.
[11] Colgate-Palmolive Ltd v Cussons Pty Ltd (1993) 46 FCR 225, 233.
District Court Rules
Rule 3 of the District Court Rules identifies the following objectives:
to establish orderly procedures for the just resolution of civil disputes; and
to facilitate and encourage the resolution of civil disputes by agreement between the parties; and
to avoid all unnecessary delay in the resolution of civil disputes; and
to promote efficiency in dispute resolution so far as that object is consistent with the paramount claims of justice; and
to minimise the cost of civil litigation to the litigants and to the State.
These objectives inform the proper construction of Rule 33 of the District Court Rules.[12] That Rule relevantly provides:
[12] See Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175.
…..
(2)A plaintiff must, at least 90 days before commencing an action to which this rule applies, give the defendant written notice containing or accompanied by –
(a)     an offer to settle the plaintiff’s claim on a basis set out in the notice; and
(b)     sufficient details of the claim, and sufficient supporting material, to enable the defendant to assess the reasonableness of the plaintiff’s offer of settlement and to make an informed response to that offer; and
(c)     if the plaintiff is in possession of expert reports relevant to the claim – copies of the expert reports.
(3)If the plaintiff believes the defendant to be insured against the relevant liability by an insurer whose identity is known to the plaintiff, the plaintiff must send a copy of the notice and the accompanying materials to the insurer.
(4)The defendant must, within 60 days after receiving the notice, respond in writing to the notice by –
(a)     accepting the plaintiff’s offer of settlement; or
(b)     making a counter-offer; or
(c)     stating that liability is denied and the grounds on which it is denied.
(5)If the defendant is in possession of expert reports relevant to the claim, the defendant’s response must be accompanied by copies of the expert reports.
(6)     When an action to which this rule applies is commenced –
(a)     the originating process must include an endorsement stating whether the plaintiff has complied with the requirements of this rule and, if not, why not; and
(b)     the plaintiff’s notice to the defendant and the defendant’s response (if any) to the notice must be filed in the Court in a suppressed file.
(7)     In awarding costs of the action, the Court may take into account -
(a)     whether the parties have complied with their obligations under this rule; and
(b)     the terms of any offer or counter-offer, or any response to an offer or counter-offer, made under this rule and the extent to which it was reasonable or unreasonable in the circumstances.
…..
The history of Rule 33 and a discussion of the progenitor Rules assists the understanding of the Rule and its interpretation.
The genesis of Rule 33 is to be found in Rule 101 of the District Court Rules 1992 (SA), which applied only to damages claims in personal injury actions and relevantly provided:
101.01 (1)Notwithstanding the following provisions of this Rule and of the provisions of Rule 101A.01, the costs of any party, the amount thereof, the person by whom, or the fund or estate, or portion of an estate, out of which they are to be paid are in the discretion of the Court, and the Court may:
…
(b) in any action seeking damages for personal injury order that the plaintiff shall not recover costs or shall recover part only of the costs if the plaintiff has failed to submit, at least 90 days before the institution of the proceedings, to the defendant's insurer, if he is aware of such insurer, or, if he is not so aware, to the defendant, a detailed claim in writing together with copies of supporting documents including medical reports which set out the nature and extent of the plaintiff's injuries and residual disabilities as known to the plaintiff at that time.
…
For actions commenced on and following 3 September 2000, Rule 6A of the District Court Rules operated to the exclusion of Rule 101.01(1)(b). Rule 6A made the rule of general application, although limited to monetary claims. Rule 6A was relevantly in the following terms:
6A.01
(1)     Rule 6A applies to inter partes actions commenced on and after 3 September 2000 and to the exclusion of Rule 101.01(1)(b) in relation to those actions.
…
6A.02
(1)     At least 90 days before commencing an action the plaintiff is to post or send to the defendants at their last known address a notice of the proposed claim with sufficient detail so that the defendants have a reasonable opportunity to make an offer to settle the claim before it is commenced.
(2)     Where the claim is for any unliquidated amount the notice is to state the sum which the plaintiff will accept in satisfaction of such unliquidated claim or why, with brief reasons, such sum cannot be stated.
6A.03
Where the plaintiff believes that an insurer is likely to indemnify any proposed defendant against the claim the notice under Rule 6A.02 is also to be sent to that insurer.
6A.04
Where the claim is supported by expert evidence the plaintiff is also to send to the defendants and the insurers copies of any relevant reports from any expert which are relied upon with the notice under Rule 6A.02 unless such reports have already been supplied.
6A.05
The Court may deprive a plaintiff who does not comply with Rule 6A of the whole or part of the costs of the action.
6A.06
(1)     Within 60 days of receipt of any notice under Rule 6A.02 the defendants or their insurers are to post or send to its sender a response to it and copies of any relevant reports from any expert on which they intend to rely unless such reports have already been supplied.
(2)     The response under (1) is to include whether liability for the claim is denied, and, if so, briefly state the grounds of such denial.
6A.07
In any order for the costs of the action the Court is to have regard to any failure of a defendant or insurer to make any, or a reasonable, response under Rule 6A.06 and it may as a result of it order costs as between solicitor and client to the plaintiff for the whole or part of the action.
6A.08
Where a proposed party to an action or an insurer has any relevant report of an expert which has not been supplied under Rules 6A.04 or 6A.06 such reports must be sent to the other parties by plaintiffs on the commencement of the action and by defendants on the filing of their notices of address for service.
6A.09
The summons or other originating process is to include an endorsement stating that a claim has been notified in accordance with Rule 6A, or that no such claim has been notified as the plaintiff believes that there are good grounds to relieve the plaintiff of the consequences of failing to make such a notification, or for such other reason as may be briefly stated in the endorsement.

Rule 33 is intended to be beneficial in its operation – namely, to provide early and informed settlement in the interests of the parties and the public – and should be so interpreted. A liberal construction to remedial or beneficial provisions was endorsed by the High Court in IW v City of Perth, where Brennan CJ and McHugh J observed:[13]
[It is a] rule of construction that beneficial and remedial legislation … is to be given a liberal construction. It is to be given “a fair, large and liberal” interpretation rather than one which is “literal or technical”. Nevertheless, the task remains one of statutory construction. Although a provision of the Act must be given a liberal and beneficial construction, a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural.
[Footnotes omitted.]
[13] IW v City of Perth (1996) 191 CLR 1, 12.
The purpose of Rule 33 is clear. It requires an intending plaintiff to put forward an offer to settle a proposed claim accompanied by adequate particulars and supporting expert reports. The expression, “offer to settle” contemplates an offer being made in terms that are capable of acceptance so as to finalise the claim. It then requires the proposed defendant to respond to the plaintiff’s offer. The Rule contemplates that where an insurer may be involved, that insurer has notice of the claim. All of this is to occur well before the issue of proceedings. It may be concluded that the object of the Rule is to encourage and facilitate an early resolution of the dispute and if there can be no resolution, to facilitate an efficient processing of a claim by the Court through the early articulation and narrowing of issues and the focussing of the parties’ attention on matters genuinely in dispute.
Having regard to the foregoing, the Rule should not be interpreted in an unduly technical or restrictive manner. It should also be borne in mind that the Court has power to dispense with the requirement of any Rule.[14]
[14] Pursuant to Rule 117 of the District Court Rules 2006 (SA).
Central to the resolution of the dispute between the parties is a consideration of the letter of 10 December 2008. The letter is addressed to the Transport Accident Commission, the compulsory third party insurer for the State of Victoria, and commences by advising that the plaintiff’s solicitors have instructions to “formulate Mr Pinter’s claim”. The letter extends over six pages. It outlines the injuries sustained by Mr Pinter and briefly discusses his treatment and ongoing disabilities. It then addresses other heads of damage, being economic loss, past special damages, Wilson v McLeay damages, future care, future medicals including medication, equipment, accommodation, heating and cooling expenses, outstanding special damages, disputed care accounts and legal costs and disbursements.
The letter includes a summary of the plaintiff’s claim as set out under the following sub-headings:
Pain and suffering (55 points)  $219,840.00
Past and future economic loss  Not claimed
Past gratuitous services  Not claimed
Wilson v McLeay damages  $10,000.00
Future care  $2,862,838.08
Future medical treatment and allied health treatment   $300,000.00
Future medication costs  $50,000.00
Future equipment (including car)   $70,000.00
Future housing   $754,000.00
Future ducted heating and cooling   $20,000.00
TOTAL  $4,286,678.08
Earlier in the letter, the solicitors provided particulars in respect of the claim. The following short extracts are of relevance to the issues arising on the appeal. Under the heading “Economic Loss”, the letter provides: “[f]or the purposes of formulation we do not claim economic loss. Should the matter not resolve in the near future this will be reconsidered”. Under the heading “Past Special Damages” reference is made to what are described as “carer accounts” and advice given that “[w]e are currently drafting a schedule of same.” Under the heading “Future Care” the following statement is included: “[h]owever, should your client continue to contend for a significant reduction of life expectancy, we will reformulate future care based on significant future nursing care”. Under the heading of “Future Medicals…” there appears the statement: “[f]urther enquiries are being made in relation to therapy and medication costs and regularity of medicine”. Under the heading “Equipment” the following appears “[o]ur client now requires a purpose built home. We have sought a report from Mr A Donato (annexed hereto). We claim the cost of $754,000.” No report from Mr Donato was annexed.
Having identified the total of $4,286,678.08, the letter ends: “[i]n addition, we also claim outstanding special damages (including disputed care accounts), legal costs and disbursements.” It is relevant to record that it was common ground that payments of the order of $900,000.00 had been made to Mr Pinter on account of cost of care to 10 December 2008.No reference was made to these payments in the letter.
The Appeal
The parties differed as to the proper characterisation of the 10 December 2008 letter. The plaintiff asserted that the letter was an offer to settle, accompanied by particulars and was a Rule 33 notice. The defendant contended that the letter did not contain an offer capable of acceptance, lacked adequate particularity, did not attach all expert reports and amounted to nothing more than a formulation of a claim designed to encourage negotiation. It was pointed out that the letter did not make any reference to Rule 33. In short, it was the defendant’s case that the plaintiff had not given a Rule 33 notice. The defendant further contended that if the letter was construed as a purported Rule 33 notice, it failed to comply with a number of the requirements of the Rule, and in particular, it had not been “given” to the “defendant” as required by Rule 33(1).
The Interpretation of Rule 33
On the hearing of the appeal, the plaintiff submitted that the Judge’s interpretation of the Rule was flawed. It was said that the term “defendant” in Rules 33(2), (4) and (5) means or includes a person properly acting in the name of the defendant with authority to settle. It was said that Rule 33(4) made this clear by using the one term “defendant” to describe the person required to respond to a plaintiff’s offer. Attention was drawn to the definition of the term “defendant” under District Court Rule 4, which relevantly provides:
defendant—a defendant to an action is a party against whose interest the action lies or who is entitled to be heard in opposition to the plaintiff's claim;
Example—
1 A person against whom contribution or indemnity is sought is a defendant to the claim for contribution or indemnity.
2 If a counterclaim is brought by a defendant, the plaintiff on the claim is defendant to the counterclaim. (In a composite action, a person may be defendant in one or more of the constituent actions and plaintiff in another or others).
In our view, the Rule is clear. It casts an obligation on a plaintiff to give written notice to the defendant offering to settle, providing details of the claim and a copy of expert reports. The Rule is explicit in requiring notice to be given to the defendant. We agree with the District Court Judge that the terms of Rule 33(3) are inconsistent with an insurer of a defendant being “the defendant”. Rule 33(3) obliges the plaintiff if it believes the defendant to be insured to send “a copy” of the notice and accompanying materials to the insurer. It is evident from this sub-rule that the insurer is to receive a copy of the Rule 33(2) notice that had been given to the defendant. In any event the definition of “defendant” does not avail the plaintiff. It is apt to encompass a third party or plaintiff in the capacity of defendant by counterclaim, but is not tailored to encompass an insurer which is not a party to an action.
This interpretation is confirmed by Rule 33(4) and (5). It is the defendant who is obliged to respond to the notice. It is the defendant who must forward copies of expert reports.
Had the Rule been intended to include an insurer of a defendant within the meaning of “defendant”, then one would have expected, either by way of express reference or necessary implication, such a meaning to appear. Neither can be found in Rule 33 or any other part of the District Court Rules.
There is further good reason to reject the plaintiff’s contention. In the ordinary case, a defendant may or may not be insured and if insured, the terms of the policy may vary. There may be a substantial excess such that the defendant does not wish to claim under the policy. The primary liability is that of the insured. The insurer provides an indemnity.
It is to be accepted, however, that a defendant may be given notice under Rule 33 through a duly authorised agent. That agent may be an insurer or may be a solicitor or may be some other person or entity. In the same way as a plaintiff may give a Rule 33 notice through a duly authorised agent, a defendant may respond pursuant to Rule 33(4) and (5) in a similar manner.
Whether the 10 December 2008 letter was given to the defendant through his duly authorised agent is a question of fact. The plaintiff made no submissions on the question of agency at trial and the topic only arose during the course of argument on the appeal. At trial, neither party appears to have addressed or fully addressed the evidence relevant to agency or developed any submissions on that question. The Judge made no finding with respect to agency. In this circumstance it is not appropriate to reach any conclusion as to whether there was any relevant agency. In any event it is unnecessary to resolve any question of agency in the present proceeding as the letter of 10 December 2008 was not a Rule 33 notice. We turn now to the characterisation of that letter.
The parties did not before the action was instituted treat the letter of 10 December 2008 as a notice under Rule 33. The letter did not describe itself as a notice under Rule 33. The letter made no reference at all to Rule 33. The solicitor for the insurer had the belief that the letter was not a Rule 33 notice. An affidavit from the solicitor was tendered and there was no challenge to the assertion of the solicitor’s belief. In a case like the present where a letter or notice is not expressly endorsed under Rule 33, the question whether it is a notice under the Rule is an objective question which must be assessed through the eyes of a reasonable recipient, having regard to its contents and to the context in which, and the background against which, the notice is issued.[15]
[15] In the context of consideration of the meaning of “offer” see Bartolo v Hancock [2010] SASC 305, [12] (Doyle CJ), citing Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165, [40].
Even if one were to accept that the 10 December 2008 letter purported to be a Rule 33 notice, it failed in many respects to meet the terms of Rule 33. It did not contain an offer to settle capable of acceptance. As observed above, in many respects it was open-ended. It made reference to the preparation of a schedule of disputed care accounts and other past special damages. It made no reference to past payments for care and whether the total amount referred to in the letter was in addition to those past payments. It failed to provide the expert report of Mr Donato in accordance with Rule 33(2)(c). This was no mere technicality; it would appear to be the only report supporting a substantial claim of $754,000.00 in relation to a purpose built home. It is to be observed that these matters also lend support to the defendant’s contentions that the letter was never intended to be a Rule 33 notice.
Further, the 10 December 2008 letter foreshadowed or threatened a claim for economic loss and foreshadowed or threatened a claim for substantial nursing expenses if there was some dispute over life expectancy.
We acknowledge that an offer to settle need not be expressed solely by reference to a fixed dollar amount. It may, at least in part, make an offer by reference to a formula, for example, an offer to pay reasonably incurred outstanding medical expenses. Such a term is contractually certain having regard to the extensive experience of the courts in determining that very question in personal injury actions. However, the 10 December 2008 letter, on its own terms, purports to be a formulation of the plaintiff’s claim, not an offer. Moreover the formulation, even if it had been expressed as an offer, was not one which would have settled “the plaintiff’s claim” because the carers’ expenses were expressly reserved to be dealt with in subsequent negotiations.
There are a number of other respects in which the Rule was not complied with. As found by the trial Judge, neither the letter nor the response to that letter was filed in a suppressed file, as required by Rule 33(6)(b). The endorsement on the inter partes summons stated that the claim had not been notified in accordance with Rule 33. Although these might be described as matters of a technical nature, the cumulative effect should be addressed. At the very least, they support the defendant’s contention that the 10 December 2008 letter was never intended to be a Rule 33 notice.
In its response of 12 February 2009 to the letter of 10 December 2008, the insurer made it clear that it was not treating that letter as anything other than a “formulated claim”, and by the letter, inter alia, sought the relevant South Australia Police investigations file, rejected certain heads of claim, sought further information and required the proceedings to be served on the defendant personally. The plaintiff did not, prior to institution of the action, disabuse the defendant of its interpretation of the letter. The solicitors for the plaintiff first asserted that the letter of 10 December 2008 was a notice under Rule 33 on 3 August 2009, well after the 60 day period referred to in Rule 33(4) had expired and well after the action was instituted on 23 April 2009.
The above referred to response by the defendant’s insurer to the 10 December 2008 letter pointed out that liability was not admitted and advised the reasons for that state of affairs. There was a question as to whether Mr Pinter was the driver or passenger of his vehicle and whether he was wearing a seatbelt at the time of the accident. Although there was a reference to liability not being admitted, it is plain on a review of the past correspondence between the parties that this was an assertion of denial of liability. It is relevant to note that once proceedings have commenced, a non-admission is taken under the Rules to be a denial. The defendant pointed out that Mr Donato’s report had not been provided and requested that a copy be forwarded. It appears that Mr Donato’s report was not received until after the commencement of proceedings. The defendant also raised questions concerning the foreshadowed claim for economic loss and the life expectancy issues. No response was sent by the solicitors for the plaintiff to the defendant at all prior to the institution of the action.
The plaintiff instituted the action without either insisting that the defendant comply with the obligations imposed on an intended defendant by Rule 33(4) or warning the defendant that the defendant had not complied with its obligations under that sub-rule.
There was nothing in the letter of 10 December 2008 or in the surrounding circumstances which would have led the defendant reasonably to infer that the letter was intended to be an offer under Rule 33. In any event, even if the Rule were capable of the construction contended for by plaintiff, it has not been shown that the defendant was in breach of any obligation arising from Rule 33.
As earlier mentioned, the District Court may dispense with any requirement of its Rules pursuant to Rule 117. The District Court might, by dispensing with a particular requirement of Rule 33 nunc pro tunc, proceed to take into account the matters in Rule 33 as if that particular requirement of the Rule had been complied with by the party in default.[16] An alternative approach, which in most cases would yield the same result, is to construe Rule 33 such that Rule 33(7) is enlivened by substantial compliance with Rule 33(2).[17] On either approach, an inconsequential departure from Rule 33 by one of the parties would not preclude the Court from having regard to the other party’s failure to reasonably respond, thereby preserving the important purpose of Rule 33. Even though the reasonableness of the conduct of the parties may be taken into account generally on the question of costs, quite apart from the operation of Rule 33, the failure to cooperate in the procedure established by the rule is an additional, and weighty, consideration.
[16] von Doussa v Owens (No 2) (1982) 30 SASR 391; ReFormer Officer of ASIO [1987] VR 875; Battiston v Maiella Construction Co Pty Ltd [1967] VR 349.
[17] Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355.
However, the non-compliance in this case is too substantial to be excused. Not only did the plaintiff fail to commit to an offer to settle his claim, he also failed to provide the expert report on his accommodation needs for which he claimed the substantial amount $754,000.00. Overall, the 10 December 2008 letter did not sufficiently comply with Rule 33 to raise any real prospect of achieving the purpose of that Rule.
Even if the letter of 10 December 2008 were found to sufficiently comply with Rule 33 to justify dispensation and the defendant were found to have failed to respond in accordance with the Rule, very little, if any, weight could have been given to the defendant’s failure to respond for several reasons. First, despite repeated requests from the defendant’s insurer, the police report of the accident had not yet been obtained and provided by the plaintiff. Even though, in all of the then known circumstances of the accident, it was almost certain that the defendant was, at least partly, responsible for it, the defendant’s insurer acted reasonably in insisting on sighting the police report before negotiating a settlement. Secondly, the overall monetary size of the claim, and the extent to which the claim was yet to be formulated or supported by expert reports, would have excused the defendant’s failure to make a responding offer in the circumstances identified above.
There are several respects in which the plaintiff did not comply with Rule 33 which may have been inconsequential, and, if they had stood alone, might not have precluded resort to Rule 33(7). First, if the failure to serve the defendant personally was the plaintiff’s only default, there would appear to have been strong grounds, in the circumstances of this case, to have excused it pursuant to Rule 117, or to have found that the Rule had been substantially complied with. If the insurer was not the defendant’s agent, it had unequivocally undertaken the conduct of the proceedings. Moreover it appears that there was no conflict at the time, nor later, between the insurer’s, and the defendant’s, interest. However, as observed above, that matter was not explored, factually, before the Judge because the plaintiff based his costs argument solely on his erroneous construction of Rule 33.
Secondly, if the expert report on future accommodation costs, which was not sent with the 10 December 2008 letter, had been provided shortly thereafter, there may have been good reason to proceed as if the plaintiff had complied with Rule 33, in that respect, from the time of delivery of that report. However, there is no evidence that the report was delivered at any later time before institution of the action, even after the defendant’s insurer pointed out that it had not been provided.
Thirdly, as observed above, the efficacy of a notice given pursuant to Rule 33 does not necessarily depend on the notice including an express reference to the Rule. However, the failure to refer to the Rule, and the consequences of non-compliance, may affect the weight given to the matters referred to in Rule 33(7). Obviously enough, much will depend on all of the circumstances.
A Further Matter

There is one further matter to be considered. In the event that a plaintiff or a defendant fails to meet the Rule 33 stipulation, Rule 33(7) provides that the Court may have regard to that failure when exercising its discretion as to costs. The Rule does not suggest that non-compliance with the Rule gives rise to any entitlement or presumption in respect of costs. The Rule says nothing about the weight to be given to any matter of non-compliance. So understood, the Rule does no more than draw attention to matters that may be considered by the Court in the exercise of its general discretion.
The collision in this matter occurred in September 2005. The plaintiff did not issue proceedings until April 2009. This is unsurprising given the nature of his injuries and the need for some time to pass before any form of final assessment could be made. It was open to the plaintiff to issue proceedings at an earlier date to seek a determination on liability and an interim award of damages. The plaintiff elected not to follow this course. Once proceedings were issued, they proceeded to trial within 18 months and resolved three days into trial. The plaintiff’s claim was substantial. The defendant was entitled to test the claim. It appears that the plaintiff was seeking a total award of more that $5,000,000.00. Ultimately, the plaintiff recovered an all-up figure in excess of $4,000,000.00. We can discern no basis for the defendant or his insurer being criticised over its conduct of any aspect of the litigation. Substantial payments were made on account of cost of care as those costs were being incurred before and following the issue of proceedings. The early disposal of the case was facilitated. The defendant and his insurer appear to have displayed a responsible attitude throughout. No basis has been shown for the order for costs being on other than a party-party basis.
No basis has been shown to interfere with the exercise of the discretion of the District Court Judge in ordering that the plaintiff recover costs on a party-party scale.
Interest on Costs
The plaintiff further submitted that in the event that the plaintiff recovers costs on a party-party scale, an order should be made that the plaintiff also recover interest on those costs backdated to the date on which the proceedings were issued.
Section 40 of the District Court Act concerns interest awarded on judgment debts and provides:
(1)     A judgment debt bears interest at a rate prescribed by the rules.
(2)     Subject to any direction by the Court to the contrary, the interest runs—
(a)     in the case of taxed costs—from the date the costs are taxed or an earlier date fixed by the taxing officer;
(b)     in the case of any other monetary sum—from the date of the judgment.
In Osborne v Kelly,[18] this Court had occasion to consider section 114 of the Supreme Court Act 1935 (SA), the Supreme Court equivalent to section 40 of the District Court Act. In that decision it was held that a taxing master’s discretion under section 114 to award interest on costs from the date of the judgment or some earlier date and not just from the date of the taxing certificate, is a wide discretion to be exercised with reference to all relevant facts. In the decision, Doyle CJ concluded:[19]
…Parliament has conferred on the taxing officer a broad discretion. That discretion is to be exercised by reference to the relevant circumstances of the case. It is a question of whether there are proper grounds to compute interest from a date earlier than the date of the certificate.
Further, a successful plaintiff having actually paid costs before the taxation or having agreed to pay interest on unpaid costs, were held to be relevant circumstances to be taken into account in deciding whether to award interest from the date of the judgment or some earlier date.
[18] Osborne v Kelly (1999) 75 SASR 392.
[19] Osborne v Kelly (1999) 75 SASR 392, [22].
It is to be noted in the within proceeding that there was no agreement between the Public Trustee as litigation guardian and the plaintiff’s solicitors that they be entitled to recover from the plaintiff interest on costs and disbursements incurred and paid by the solicitors. It appears that the plaintiff had been unable to fund the action and the solicitors agreed to await payment on finalisation of the claim. Mr Pinter had no liability to pay interest to the solicitors. Accordingly, this submission, if successful, would result in the plaintiff recovering interest without any obligation to make any payment to the solicitors. This would represent a windfall for Mr Pinter.
For the reasons earlier identified, we do not consider that the defendant acted in a way that would justify any special order as to interest on costs backdated to the date of issue of proceedings.
Conclusion
We dismiss the appeal. We will hear the parties as to costs.