Woods v Leane No. DCCIV-00-109

[2002] SADC 2

Settled by his Honour Judge Bishop on 1 February 2002

JUDGE BISHOP
NO.109/2000
FRIDAY 1 FEBRUARY 2002
JAMIE DANIEL WOODS
V
STACEY LEANE

1. In this action, upon apportioning responsibility 70 percent against the plaintiff and 30 percent against the defendant, the plaintiff succeeded in recovering judgment for $22,830.00 from the defendant in respect of a claim for damages for injury arising out of the use of a motor vehicle.  By offers to consent to judgment served on 7 August 2000, the defendant had proposed an equal apportionment of responsibility and had offered $31,816.28 (inclusive of interest and party and party costs). Those offers were not accepted by the plaintiff.

2. Section 42(1) of the District Court Act provides that, 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. Section 42(2) provides that, if (a) an action for recovery of damages is brought in the Court; (b) the action might have been brought in the Magistrates Court; and (c) the plaintiff recovers less than an amount fixed by the rules for the purposes of this paragraph, no order for costs will be made in favour of the plaintiff unless the Court is of the opinion that it is just in the circumstances of the case that the plaintiff should recover the whole or part of the costs of action.  For the purposes of section 42(2), rule 101.02A has fixed the amount of $30,000 in respect of an action for damages for injury arising out of the use of a motor vehicle.

3. For the plaintiff, Mr Doherty submitted that, in the circumstances of this case, it is just to depart from section 42(2). That submission was opposed by Mr Swan, and now by Mr James. The defendant also made application that costs be awarded to the defendant from the commencement of the proceedings.

4. The purpose of section 42 is to discourage litigants, whose claims ought to be litigated in the Magistrates’ Court, from litigating them in the District Court. The purpose of the rules relating to offers to consent to judgment is to encourage the settlement of cases and to enable a defendant to protect himself against the costs of litigation (see Stevens v Chandler (1988) 46 SASR 541). By section 42(2), the court may depart from the prima facie rule prescribed by that section. However that discretion, like all judicial discretions, must be exercised judicially upon proper principles. The question which here arises is whether there are circumstances connected with the case which warrant that the plaintiff should recover and/or not bear some part of the costs of action.

5. While the offers which were made were generous (when regard is had to the amount awarded), still the amount recovered was substantial, the case did involve serious questions of law and fact and the assessment (which did entail many attendant uncertainties) was reduced by the plaintiff’s determined and successful efforts to mitigate his damages, a success which neither he nor his advisers could confidently have assessed (cf. Burton v Litton Business Systems Pty Ltd and Data Print (Aust) Pty Ltd (1977) 16 SASR 162). The case was important and difficult. The issues were somewhat complex and the plaintiff was reasonable in seeking to have them tried in this Court (cf. Potts v Moran (1976) 16 SASR 284).

6. In all the circumstances, my opinion is that, in relation to the costs of this action it is just that the plaintiff recover from the defendant his costs of the action, upon the Magistrates’ Court scale, to 14 days after 7 August 2000, when the offers to consent to judgment were made,. In my view, the amounts offered were adequate, having regard to rule 40.05, and there is no reason for which the effect of that rule should not also here apply. The defendant should recover her costs against the plaintiff, upon the District Court scale, from 14 days after the offers to consent to judgment were filed.  In the exercise of my discretion, no further order for costs should be made. I order accordingly.

7. I direct, pursuant to rule 101.01(c), that the defendant’s costs be set off against the amount of the judgment, and that there be a stay of judgment pending resolution of the defendant’s entitlement to costs.

8. Formally, therefore, I enter judgment for the plaintiff in the amount of $22,830 and make orders for costs as herein indicated.