Thompson v Desmond - [2016] ACTSC 214

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Thompson v Desmond
Citation:	[2016] ACTSC 214
Hearing Date:	1 August 2016
DecisionDate:	1 August 2016
Before:	Mossop AsJ
Decision:	See [63]
Catchwords:	APPEAL – Appeal from decision of Magistrates Court – Magistrate’s decision involved review of Deputy Registrar’s assessment of costs – Whether Magistrate erred in failing to determine point of principle raised by plaintiff in the review PROCEDURE – COSTS – Appeal from decision of Magistrates Court – Magistrate’s decision involved review of Deputy Registrar’s assessment of costs – Assessment of costs following consent judgment – Where plaintiff rejected mandatory final offer – Where consent judgment made in same terms a mandatory final offer – Bill of costs – Defendants objected to costs claimed after making of mandatory final offer – Whether those costs were fair and reasonable for the attainment of justice – Court Procedures Rules 2006 (ACT), r 1751(2) – Deputy Registrar does not have power to reduce costs that are otherwise fair and reasonable by having regard to the terms of a mandatory final offer
Legislation Cited:	Court Procedures Rules 2006 (ACT), rr 1751(2), 1761, 1852, 1855, 6251, 6252, 6253 Magistrates Court Act 1930 (ACT), s 274 Road Transport (Third Party Insurance) Act 2008 (ACT), ss 144, 156A
Cases Cited:	Biernacki v Klenka (1988) 80 ACTR 1 Brennand v Hartung and Best Practice Education Group Ltd [2014] ACTSC 326 Hulanicki v Walton (No 2) [2015] ACTCA 45 Kirk v Industrial Court (NSW) (2010) 239 CLR 531 Messiter v Hutchinson (1987) 10 NSWLR 525 Urbaniak-Bak v Prail [2014] ACTSC 171
Parties:	Justin Thompson (Appellant) Mary Desmond (Respondent) Insurance Australia Limited (Second Respondent)
Representation:	Counsel Mr R Crowe SC (Appellant) Ms M Castle (Respondents)
Solicitors Maliganis Edwards Johnson (Appellant) Sparke Helmore (Respondents)
File Number:	SCA 111 of 2015
Decision under appeal:	Court: Magistrates Court of the Australian Capital Territory Before: Magistrate Morrison Date of Decision: 15 December 2015 Case Title: Thompson v Desmond & Insurance Australia Ltd Court File Number: CS 219 of 2012

MOSSOP AsJ:

This is an appeal from the Magistrates Court. It is brought as of right under s 274(2)(b)(ii) of the Magistrates Court Act 1930 (ACT). The underlying dispute is one about the assessment of costs recoverable by a plaintiff in proceedings pursuant to a consent judgment dated 10 December 2013. The appellant was the plaintiff below. The respondents were the defendants. I will refer to the parties as plaintiff and defendants respectively.

The principles to be applied are uncontroversial and were identified in Urbaniak-Bak v Prail [2014] ACTSC 171 at [51]-[53].

Background

The proceedings brought by the plaintiff were proceedings claiming damages for personal injury arising out of a motor vehicle accident.

On 4 July 2013 the defendants had made a mandatory final offer pursuant to the provisions of the Road Transport (Third Party Insurance) Act 2008 (ACT) (Third Party Insurance Act) to settle proceedings for $70,000 plus costs.

On 21 November 2013 the defendants made a Calderbank offer offering…

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 Thompson v Desmond

Details

AGLC: Thompson v Desmond [2016] ACTSC 214
Case: [2016] ACTSC 214
Decision Date: 1 August 2016

CaseChat Overview and Summary

In Thompson v Desmond, the appellant, Thompson, sought an appeal against a decision of the Magistrates Court, which had reviewed an assessment of costs by the Deputy Registrar. The underlying dispute was the calculation of costs following a consent judgment. The consent judgment had been made in the same terms as a mandatory final offer that Thompson had previously rejected. The defendants objected to the costs claimed after the making of the mandatory final offer, and the issue before the court was whether those costs were fair and reasonable for the attainment of justice.

The court had to determine whether the Magistrate erred in not deciding a point of principle raised by Thompson in the review. Specifically, it was necessary to consider whether the Deputy Registrar had the power to reduce costs that were otherwise fair and reasonable by having regard to the terms of a mandatory final offer. The Court Procedures Rules 2006 (ACT), rule 1751(2) was relevant, as it provided that the Deputy Registrar does not have the power to reduce costs in this manner. The court had to examine the nature of the Deputy Registrar's role in assessing costs and the proper application of the rules.

The court found that the Magistrate did not err in not addressing the point of principle raised by Thompson. The court determined that the Deputy Registrar’s assessment of costs was correct and that the costs claimed were fair and reasonable for the attainment of justice. The Deputy Registrar did not have the power to reduce costs that were otherwise fair and reasonable by having regard to the terms of a mandatory final offer. The appeal was dismissed, and the original assessment of costs was upheld.

The final orders of the court were that the appeal be dismissed, and costs be awarded to the respondents. The court found that the Deputy Registrar’s assessment was correct and that the costs claimed were fair and reasonable. The appeal was dismissed, and the original assessment of costs was upheld.

Orders

Orders of the court

See [63]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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