Smith v Jones (No. 4)

1. [1]

   On 9 September 2022, I delivered a judgment which, amongst other things, ordered that the proceedings be dismissed with costs: Smith v Jones [2022] NSWSC 1191.

2. [2]

   The basis of the dismissal was that the plaintiff’s cause of action filed in June 2021 against the defendant, (her former husband), for assault and battery between 1995 and 2009 was statute-barred and the evidence tendered and led at the hearing did not meet the test for suspension of the limitation period.

3. [3]

   On 12 September 2022 the defendant filed a notice of motion seeking an order for indemnity costs based on three “Calderbank offers” sent in the proceedings in July 2021, March 2022 and April 2022 respectively.

4. [4]

   It is necessary to understand the procedural background and the stage the proceedings had reached at the time of each Calderbank offer to assess the question of whether the failure to accept the offer at the relevant time was unreasonable.

Chronology of the proceedings and the three Calderbank offers

1. [5]

   The statement of claim filed on 21 June 2021 did not plead any relief by way of extension of the limitation period or refer to the plaintiff having a disability within the meaning of the Limitation Act 1969 (NSW) as a basis for suspension of the limitation period.

2. [6]

   Three weeks after proceedings were commenced the first letter of offer was sent on 9 July 2021 by the solicitor for the defendant, who was and is also the defendant’s solicitor in the family law proceedings. The letter was marked “without prejudice save as to costs” and is reproduced in full:

3. [7]

   The offer was rejected either by an email of 14 July 2021 from the plaintiff’s solicitor or by a letter of 22 July 2021. There was some issue as to whether the 14 July 2021 email was sent or received, but even if it was sent, it contained nothing but a bald rejection of the offer.

4. [8]

   The 22 July 2021 letter from the plaintiff’s solicitor stated rather unedifying , as follows:

5. [9]

   The letter then went on to propose some case management orders regarding the request and provision of further and better particulars of the statement of claim and the filing and service of a defence and medical evidence. The proposal included a timeframe of 28 October 2021 within which the defendant was to file his defence.

6. [10]

   The first directions hearing before the Common Law Registrar on 10 August 2021 was adjourned for a short period to allow the defendant to serve his notice of motion seeking dismissal of the proceedings and in the alternative, striking out the statement of claim due to it being both out of time and not properly pleaded.

7. [11]

   That notice of motion was filed on 9 August 2021 and was supported by an affidavit of the defendant’s solicitor sworn 9 August 2021 appending both letters referred to in the July 2021 Calderbank letter and advising that orders were being sought to allow documents in the family law proceedings to be obtained and deployed in these proceedings.

8. [12]

   On 16 August 2021 the motion was given a hearing date by the Registrar of 23 February 2022. Consent orders were made regarding the service of evidence in respect of that notice of motion. A directions hearing was listed for 28 October 2021 to check on progress.

9. [13]

   On 27 October 2021 the solicitor for the defendant wrote to the Registrar seeking an expanded timetable for his notice of motion because the plaintiff had not complied with the timetable, and also to allow the plaintiff to file and serve her own notice of motion and evidence relating to limitation and/or disability issues.

10. [14]

    On 28 October 2021 the plaintiff filed a notice of motion seeking a declaration “that she was under a disability as defined in the Limitation Act from 21 June 2009 to 19 June 2021 and so the proceedings have been brought within the applicable limitation period”. In support of the motion one affidavit was filed, authored by the plaintiff, annexing two short expert reports. Even taken at face value and accepted as true, the affidavit and reports were insufficient to substantiate that the plaintiff, for a period of more than 28 days, was incapable or substantially impaired in managing her affairs in respect of the cause of action during the identified period.

11. [15]

    Both notices of motion were listed for hearing on 23 February 2022. In the days leading up to that fixture, my Associate wrote to the parties requesting certain information and an outline of the parties’ positions and submissions. This prompted an exchange of outline written submissions which included, on the part of counsel for the plaintiff, Ms Balendra, a concession that the statement of claim in its current iteration was not maintainable and that orders should be made for its amendment.

12. [16]

    On 23 February 2022, given those concessions, I made orders for the filing and service of an amended statement of claim, a defence and a reply and for the exchange of written submissions in respect of the notices of motion. I stood both notices of motion over for hearing on 30 March 2022.

13. [17]

    The amended statement of claim filed on 4 March 2022 comprised a substantial re-pleading of the case, more precisely pleading the allegations of assault and battery and their dates and leaving out significant parts of the previous iteration that were in unacceptable form and included content that was not relevant to any potential cause of action.

14. [18]

    A second Calderbank offer was made by the defendant’s solicitor on Thursday 15 March 2022, also expressed to be “without prejudice save as to costs”:

15. [19]

    There was no response at all to this letter. Although a very short turnaround time, in the context of the approaching hearing date, and against a background of exchange of evidence and written submissions, the three working day period for acceptance of the offer is not fatal to the question of whether it was unreasonable to fail to accept the offer. I also note no request was made to extend the time for acceptance and no correspondence indicating the offer was being considered. However, the defendant does not rely on this letter as a stand alone trigger for indemnity costs. Rather, counsel Mr Anderson submitted that its contents regarding the nature and purpose of the evidence served and to be tendered, informs the next Calderbank letter sent four weeks later.

16. [20]

    On 16 March 2022 the defendant filed a defence to the amended statement of claim denying the allegations of assault and battery, denying personal injury and pleading that the action is not maintainable by reason of the bars contained in the Limitation Act and that by virtue of s 63 of that Act, any right and title of the plaintiff to damages claimed in the proceedings was extinguished by virtue of those provisions.

17. [21]

    On 24 March 2022 the plaintiff filed a reply that pleaded that the running of the limitation period was suspended under ss 11(3) and 50F(2) of the Limitation Act.

18. [22]

    At the hearing before me on 30 March 2022 evidence was tendered in respect of both notices of motion which were heard together by consent. The plaintiff gave brief additional evidence and was cross-examined for approximately three hours. The plaintiff was evasive and combative in cross-examination and this prolonged the cross-examination. The hearing was adjourned to 8 June 2022.

19. [23]

    A third Calderbank offer was made on 19 April 2022, also expressed to be “without prejudice save as to costs”:

20. [24]

    It is common ground that no response at all was provided to this letter.

21. [25]

    On 8 June 2022 the cross-examination of the plaintiff continued for a further four hours. The hearing was adjourned for the preparation of written submissions and for oral submissions to be made to the Court on 20 July 2022. Judgment was reserved and published to the parties on 9 September 2022.

22. [26]

    On 16 September 2022 the defendant’s notice of motion for indemnity costs was heard together with the application by the plaintiff for suppression of her name. The plaintiff’s motion was dealt with in Smith v Jones (No. 2) [2022] NSWSC 1321 and Smith v Jones (No. 3) [2022] NSWSC 1448.

Applicable Principles

1. [27]

   Section 98(1)(c) of the Civil Procedure Act 2005 (NSW) permits the Court to order costs on an ordinary or an indemnity basis. Rule 42.2 of the Uniform Civil Procedure Rules 2005 (NSW) provides that unless the Court otherwise orders, or the rules otherwise provide, costs payable are to be assessed on the ordinary basis.

2. [28]

   There is provision in the Uniform Civil Procedure Rules for formal offers of compromise to be made that have the effect of altering the usual basis for an award of costs to a successful party in proceedings.

3. [29]

   It is recognised however that there are cases where the offer of compromise machinery does not provide a mechanism that is easily adaptable to the kinds of offer of settlement that sometimes are made.

4. [30]

   Here, the compromise offered was in effect a “walk away”, with the defendant to bear his own costs. This is arguably better expressed in a letter which enables the parameters of the compromise and the proposal to be explained: see Calderbank v Calderbank [1975] 3 All ER 333 at [342] per Cairns LJ.

5. [31]

   The Court of Appeal in Hancock v Arnold; Dodd v Arnold (No. 2) [2009] NSWCA 19 (“Hancock”) at [17] also provides useful guidance:

6. [32]

   In general terms, it should be borne in mind that an order for indemnity costs is not made to punish an unsuccessful party for persisting with their case, but simply to compensate the successful party fully for costs incurred when the court takes the view that it was unreasonable for the other party to have subjected the successful party to the expenditure of costs: Oshlack v Richmond River Council (1988) 193 CLR 72; [1998] HCA 11 per Gummow and Gaudron JJ at [44].

7. [33]

   The question of whether refusal of an offer of compromise in the form of a Calderbank letter may justify a departure from costs being awarded on the ordinary basis ultimately turns on whether the offeree’s failure to accept the offer, in all the circumstances, warrants departure from the ordinary rule: SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323 at [37] per Giles JA. A departure will not be justified unless in all the circumstances it was unreasonable for the offeree not to accept the offer: Hunter v Roberts (No 2) [2019] NSWCA 235 (“Hunter v Roberts”) at [6] per Meagher and Brereton JJA and Simpson AJA. (emphasis added).

8. [34]

   Accordingly, relevant factors concerning whether it was unreasonable not to accept a Calderbank offer in the circumstances include:

   1. (1)

      the stage of the proceedings at which the offer was received;

   2. (2)

      the extent of the compromise offered;

   3. (3)

      the time frame within which the offeree had to consider the offer;

   4. (4)

      the offeree’s prospects of success, assessed at the time of the offer; and

   5. (5)

      whether the letter of compromise explicitly stated that the offer was made in Calderbank terms and clearly specified the consequences of refusal by foreshadowing an application for indemnity costs in the event of the offeree's rejecting it: see Hunter v Roberts at [7] per Meagher and Brereton JJA and Simpson AJA and the authorities there cited; Penrith Rugby League Club Ltd Trading As Cardiff Panthers v Elliot (No 2) [2009] NSWCA 356 at [11] per Ipp, Basten and Sackville JJA.

9. [35]

   The party making an offer of compromise or Calderbank offer bears the onus of satisfying the court that it should exercise the costs discretion in its favour: Evans Shire Council v Richardson (No 2) [2006] NSWCA 61; Commonwealth of Australia v Gretton [2008] NSWCA 117 at [46]; County Securities Pty Limited v Challenger Group Holdings Pty Limited (No 2) [2008] NSWCA 273 at [31].

Submissions

1. [36]

   Mr Anderson who appeared for the defendant argued that in circumstances where the plaintiff’s limitation problems were stark and insurmountable, and the defendant was prepared to forego his costs of defending the proceedings both the July 2021 and April 2022 offers, which were both left open for a reasonable period of time and contained genuine compromise, it was unreasonable for the plaintiff to refuse the offers and she should pay his costs on an indemnity basis.

2. [37]

   To the extent that it may be suggested that any offer was not left open for long enough, the statement of the Court in Hancock at [25] is apposite:

3. [38]

   In response, Ms Balendra submitted that first, the plaintiff “had medical expert evidence that confirmed that she suffered from a diagnosable condition” and so “the case was not hopeless”. She submitted that the question of disability was a matter for the Court and the plaintiff could not second-guess that outcome and it was not unreasonable to wait for the Court’s determination as to whether disability was made out on the evidence.

4. [39]

   In reply Mr Anderson submitted that the statement of claim failed to identify any basis that showed the claim was not statute-barred. Nothing was raised in response to the July 2021 offer that addressed the proper legal test for disability and the claim remained unarguably statute-barred, nothing was done to remedy the situation until the notice of motion filed in late October 2021, but the affidavit evidence filed in support of it was inadequate and remained inadequate. The additional reports of Dr Sioto added nothing to the evidence and so there was never evidence establishing disability in accordance with the relevant test, and so the claim remained hopeless.

5. [40]

   The circumstances evident by the April 2022 letter included that the plaintiff had demonstrated to have been untruthful in her affidavit by other evidence put to her in cross-examination for which she provided no satisfactory explanation.

6. [41]

   Mr Anderson submitted that on a simple clear-eyed assessment of the prospects of success, the matters set out in the April 2022 letter (read together with the March 2022 letter) demonstrated plainly why it was unreasonable in those circumstances for the plaintiff to refuse to accept the defendant’s offer. The offer involved a significant compromise involving a “walk away” from the litigation, with the defendant foregoing the very significant costs which by then he had incurred, including retaining junior and senior counsel, two days in court, and preparation of affidavit material and written submissions. The offer was left open for 28 days. No reply or acknowledgment at all was provided. It seems that the offer was simply ignored.

Decision

1. [42]

   I am unpersuaded by Ms Balendra’s submission that somehow it is legitimate for a party to proceedings to wait and see what the Court makes of the evidence. Here, fundamentally fatal problems with the case had been pointed out in correspondence from the solicitors for the defendant shortly after the statement of claim was filed. The basal issue was not a discretionary matter such as an application for extension of the limitation period where a court may or may not conclude that it is “just and reasonable” to extend a limitation period.

2. [43]

   Here the plaintiff had both an evidentiary and persuasive onus to prove that she was labouring under “disability” as defined for the relevant period. The evidence she marshalled, such as it was, failed to do so. She filed a badly pleaded statement of claim pleading a cause of action that was entirely statute-barred and so not maintainable. No explanation or basis was provided as to why she asserted her cause of action was in fact maintainable until two months after the defendant filed a motion for dismissal.

3. [44]

   I am mindful of the comments of the Court of Appeal in Townsend where offers proposing complete capitulation may be thought to involve no real element of compromise. However, in circumstances where a claim is statute-barred and thus not maintainable, and no evidence is served or forthcoming that meets the clearly stated test for disabiltiy, an invitation to capitulate takes on a different and relevant significance, where costs are of necessity being incurred to defend the allegations and protect the defendant’s position.

4. [45]

   The letter of 9 July 2021 was more than a bold proposal to walk away because the plaintiff’s case “had risks”. The letter pointed out in clear terms the significance of the plaintiff’s deployment of her civil case in the family law proceedings and her obvious long term understanding of her rights to bring a civil claim. Her own apparent understanding of the function and effect of the limitation period and the role of a Calderbank offer was evidenced by her own letter of 28 June 2017 in the family law proceedings to which reference was made.

5. [46]

   Also raised in the July 2021 letter was the defendant’s intention to secure, examine and use other correspondence in the family law proceedings. The effect of the Calderbank offer was explained, and the intention to rely on the contents of the letter for costs on an indemnity basis was made clear. The intention to retain senior counsel (and thus incur further costs) if the offer was not accepted was also articulated. The offer was left open for seven days, but in circumstances where there are requirements to file a defence within a set period and take certain steps to protect the defendant’s interests, the seven day period for acceptance was not in my view unreasonable. No request was made to extend the time and the offer was rejected out of hand with a basis expressed in the 22 July 2022 letter of the plaintiff’s solicitor demonstrating either a lack of understanding of the relevant principles, or a refusal to engage in proper consideration of those principles.

6. [47]

   The March 2022 letter articulated a type of compromise in that it sought a dismissal of the plaintiff’s motion and the proceedings and that the plaintiff pay the defendant’s costs of the proceedings on an ordinary basis, in circumstances where there was an operative Calderbank offer in place from eight months before which potentially would entail an indemnity costs order. This is at least some element of compromise, but too elusive in my view to trigger a stand-alone justification for an indemnity costs order, but standing as it does between the July 2021 and the April 2022 letters, the March letter still has a role to play.

7. [48]

   The April 2022 letter falls into a different category. The compromise there proposed was to forego the significant costs incurred in return for a dismissal of what was then, as was argued in the letter, an unmaintainable and unsupported and unsupportable case on disability.

8. [49]

   The letter referred to the circumstances being made even more parlous by the unsatisfactory performance of the plaintiff in cross-examination and the evident untruths in her evidence, but the offer was not dependent upon the Court making negative findings about her credibility, (although subsequently there were in fact such negative findings made). The letter also should be read in the context of the matters set out in the March 2022 letter, and in particular the reference to the contents of the October 2017 advice of Mr Knox SC, the fact that the plaintiff is and was an insurance claims manager and a trained lawyer who not only would have had a detailed knowledge of limitation periods, but also actively sought advice about that issue, and was in fact given comprehensive advice about it, yet chose not to file her statement of claim until June 2021.

9. [50]

   It was in all those circumstances unreasonable for the plaintiff to fail to accept the April 2022 offer, but more than that, it was unreasonable to have subjected the defendant to the expenditure of costs at all in what was a hopeless case from beginning to end. The prospects of success of the statute-barred claim was undeniably poor at the very beginning, as was pointed out in the July 2021 letter, and as the evidence was collated and served, the prospects became even more hopeless.

10. [51]

    I am satisfied that the costs discretion should be exercised in favour of ordering that the defendant’s costs of the proceedings be paid by the plaintiff on an indemnity basis on and from the first Calderbank offer made on 9 July 2021.

11. [52]

    I should note that counsel for the defendant raised two other bases for an order that the plaintiff pay his costs on an indemnity basis; first that the plaintiff’s lies comprised serious misconduct and second, that there had been wilful disregard of the known facts or the clearly established law. Given my findings in respect of the offers of compromise, in my view there is no need for me to consider those alternative bases.

Orders

1. [53]

   I make the following order:

   1. (1)

      Further to order 2 made in the proceedings on 9 September 2022, the plaintiff to pay the defendant’s costs of the proceedings on an indemnity basis on and from 9 July 2021.