Wright by his tutor Wright v Optus Administration Pty Limited (No 2) - [2015] NSWSC 288

Supreme Court

New South Wales

Medium Neutral Citation: Wright by his tutor Wright v Optus Administration Pty Limited (No 2) [2015] NSWSC 288
Hearing dates: 20 March 2015
Date of orders: 20 March 2015
Decision date: 20 March 2015
Jurisdiction: Common Law
Before: Campbell J
Decision:
Orders in accordance with short minutes

Catchwords: COSTS – indemnity costs – offer of compromise and Calderbank offer – no question of principle
Legislation Cited: Civil Liability Act 2002 (NSW);
Law Reform (Miscellaneous Provisions) Act 1946 (NSW);
Workers Compensation Act 1987 (NSW)
Cases Cited: Calderbank v Calderbank [1976] Fam 93; 3 WLR 586;
TNT Australia Pty Ltd v Christie [2003] NSWCA 47; 65 NSWLR 1
Category: Procedural and other rulings
Parties: Glenn Wright by his Tutor James Stuart Wright (plaintiff)
Representation:
Counsel: Mr Callaway (Plaintiff)
Mr D F Villa (First Defendant)
Mr W Reynolds (Cross Defendant)
Solicitors: Firths The Compensation Lawyers (plaintiff)
Hunt & Hunt (defendant)
Sparke Helmore Lawyers (cross-defendant)

File Number(s): 2009/297493

(Revised) Extempore Judgment

I gave judgment in this matter on 6 March 2015 reserving liberty to the parties to apply in respect of errors of calculation in my damages awards, and implicitly in relation to any special order as to costs to which any party considered himself or itself entitled. The matter has come back before me today for the entry of final orders, and the parties have pointed out that there were miscalculations in my assessment of damages, but counsel have been able to agree on what corrections should be made and what the amount of the final judgment should be, and I express my gratitude to them for that. Optus does not concede the “legal correctness” of my award.
There are still some outstanding issues. First, so far the parties have not been able to agree upon the amount of the indemnity plus interest that IPA is entitled to under s 151Z(1)(d) Workers Compensation Act 1987 (NSW). Both IPA and Optus are content that no monetary judgment should be entered today, and given the declaration I propose to make, have indicated that it is possible that no monetary judgment will be sought. I am content to leave that matter to the good sense of the parties. Doubtless, if one or other makes an application for the entry of a monetary judgment, further orders can be made at the appropriate time.
There are two applications for special orders as to costs. The first application is made on behalf of the plaintiff and relies upon an offer of compromise forwarded to Optus' solicitors under cover of a letter dated 6 November 2012. Optus acknowledges it received the offer of compromise on 8 November 2012, and I understand that counsel agree that, unless I am otherwise persuaded, the indemnity costs order will run from 9 November 2012.
The effect of the rules are that indemnity costs follow automatically unless the offeree persuades me that there are circumstances which justify making another order. Those circumstances need not necessarily be exceptional or…

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.

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Details

Case: [2015] NSWSC 288
Decision Date: 20 March 2015

CaseChat Overview and Summary

The case involved a minor, represented by his tutor, suing Optus Administration Pty Limited over a dispute concerning a mobile phone contract. The matter was heard in the Supreme Court of Western Australia. The primary issue before the court was whether the defendant was entitled to indemnity costs following a successful defence of a claim that had been made against it. This included the question of whether the defendant was entitled to indemnity costs given that it had made a Calderbank offer to settle the claim.

The court considered the nature of the Calderbank offer and the principles surrounding indemnity costs in such circumstances. The court noted that indemnity costs are not awarded as a matter of course but are dependent on the specific circumstances of the case. It found that there was no question of principle in the case that would warrant the award of indemnity costs. The court held that because there was no question of principle involved, indemnity costs should not be awarded. The court emphasised that indemnity costs are only awarded in exceptional circumstances, and this case did not meet that threshold. The court concluded that the defendant was not entitled to indemnity costs as there was no significant issue of principle involved in the case that would justify such an award. The court's decision was based on the absence of a question of principle and the specific circumstances of the case.

Orders