Webber by her next friend Esme Alice Nilsson v Insurance Commission of Western Australia

In this case, Webber, by her next friend Esme Alice Nilsson, sued the Insurance Commission of Western Australia. Webber suffered a brain injury from a car accident and the dispute concerned whether she had made a compromise agreement regarding her claim. The Supreme Court of Western Australia was tasked with deciding on the legal issues surrounding the compromise agreement and the costs of the litigation.

The key legal issues before the court were whether the unexpected discovery of the compromise agreement constituted a significant event that justified departing from the usual rule that costs follow the event. Additionally, the court needed to determine whether there were any circumstances that might excuse the plaintiff, Webber, or her next friend, Esme Alice Nilsson, from liability for costs due to the late emergence of the compromise agreement.

The court exercised its discretion judicially, considering various factors including the unexpected nature of the compromise agreement's discovery and the timing of the disclosure. The court noted that the plaintiff was not at fault for the incorrect assumptions made about the existing compromise due to her brain injury and young age at the time of the agreement. Furthermore, the court observed that the impecuniosity of the plaintiff was not a sufficient ground to depart from the usual order on costs. The court also found that the plaintiff's next friend, Esme Alice Nilsson, was not at fault for not subpoenaing the relevant documents from the court registrars, as the discovery of the compromise file was unexpected and occurred despite extensive inquiries by both parties.

Given these considerations, the court decided not to make any order as to costs. The court concluded that the late disclosure of the compromise agreement, along with the other circumstances of the case, justified not imposing costs on the plaintiff or her next friend.