Waterfall v Antony (No 2) - [2012] VSC 467

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IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. S CI 2011 05777

JOHN RONALD WATERFALL	Plaintiff
v
STUART ROSS ANTONY	Defendant

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JUDGE:	BEACH J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 October 2012
DATE OF JUDGMENT:	10 October 2012
CASE MAY BE CITED AS:	Waterfall v Antony (No 2)
MEDIUM NEUTRAL CITATION:	[2012] VSC 467

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PRACTICE AND PROCEDURE – Costs – Offer of compromise – Action for personal injuries – Plaintiff received payments under the Transport Accident Act – Defendant offering sum of money and retention of Transport Accident Act payments – Whether plaintiff obtained judgment not more favourable than the terms of the offer of compromise – Uncertainty of offer of compromise – Transport Accident Act 1986, s 42 – Supreme Court (General Civil Procedure) Rules 2005, r 26.08.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C.W.R. Harrison SC with Mr I.R. Fehring	Stringer Clark
For the Defendant	Mr P.B. Jens	Hunt & Hunt

HIS HONOUR:

On 4 October 2012, after a three day trial, the Court gave judgment for the plaintiff in the sum of $309,992. The damages were awarded in respect of the injuries suffered by the plaintiff in a motor vehicle accident that occurred in Western Australia on 14 November 2008.

On 17 September 2012, fourteen days before the trial commenced, the defendant made an offer of compromise to the plaintiff in the following terms:

“TAKE NOTICE that the defendant makes an offer of compromise of $150,000 plus the plaintiff’s costs plus retention of benefits under the Transport Accident Act 1986.
AND FURTHER TAKE NOTICE that this offer is served in accordance with Part 2 of Order 26 and Order 63.36 of the Supreme Court (General Civil Procedure) Rules 2005 and remains open to be accepted for a period of 14 days after service of this notice upon you.”

Rule 26.08(3) of the Supreme Court (General Civil Procedure) Rules 2005 provides:

“Where an offer of compromise is made by a defendant and not accepted by the plaintiff, and the plaintiff obtains a judgment on the claim to which the offer relates not more favourable to the plaintiff than the terms of the offer, then unless the Court otherwise orders –
(a)the plaintiff shall be entitled to an order against the defendant for the plaintiff’s costs in respect of the claim up to and including the day the offer was served taxed on a party and party basis; and
(b)the defendant shall be entitled to an order against the plaintiff for the defendant’s costs in respect of the claim thereafter taxed on a party and party basis.”

Section 42 of the Transport Accident Act 1986 relevantly provides:

“42. Entitlement to compensation outside Victoria
(1) This section applies where a person is injured or dies as a result of a transport accident if-
(a)the person, a dependant of the person or the surviving partner of the person is entitled to compensation in respect…

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 Waterfall v Antony (No 2)

Details

AGLC: Waterfall v Antony (No 2) [2012] VSC 467
Case: [2012] VSC 467
Decision Date: 10 October 2012

CaseChat Overview and Summary

In the matter of Waterfall v Antony (No 2), the plaintiff sought to recover damages for personal injuries sustained in a motor vehicle accident. The dispute involved the defendant's offer of compromise and the plaintiff's entitlement to costs under the Supreme Court (General Civil Procedure) Rules 2005. The plaintiff had received payments under the Transport Accident Act 1986, and the defendant offered a sum of money with the retention of those payments. The primary legal issue was whether the plaintiff had obtained a judgment that was not more favourable than the terms of the defendant's offer of compromise, given the uncertainty surrounding the offer.

The court examined the provisions of section 42 of the Transport Accident Act 1986 and rule 26.08 of the Supreme Court (General Civil Procedure) Rules 2005. It considered the nature of the offer of compromise and whether the plaintiff's judgment was more favourable than the terms of the offer. The court determined that there was uncertainty in the defendant's offer, as it was unclear whether the payments under the Transport Accident Act would continue if the plaintiff accepted the offer. This uncertainty made it difficult to ascertain whether the plaintiff's judgment was more favourable than the terms of the offer.

The court found that, due to the uncertainty surrounding the defendant's offer of compromise, the plaintiff had obtained a judgment that was not more favourable than the terms of the offer. Consequently, the plaintiff was not entitled to costs under the Supreme Court (General Civil Procedure) Rules 2005. The court ruled that the uncertainty of the offer of compromise meant that the plaintiff had not obtained a judgment that was more favourable than the terms of the offer, and thus, the plaintiff was not entitled to costs. The court ordered that the plaintiff's application for costs be dismissed.

Orders