Offers of compromise with terms not reflected in final orders September 25, 2019

[32] The Offer of Compromise however had some 10 additional terms, examples of which are as follows:

“2. The defendant’s motor vehicle third party insurer is authorised to deduct and/or pay from the judgment sum in paragraph 1 the amount of any advance payments or interim payments made for or on behalf of the plaintiff.

3. The defendant’s motor vehicle third party insurer is authorised to deduct and/or pay from the judgment sum in paragraph 1 any amount repayable by the plaintiff in respect of this action where a demand or notice for that amount is served on or in respect of this action where a demand or notice for that amount is served on or given to the defendant or its solicitor or insurer, whether for the worker’s compensation, social services, sick leave payments, make-up pay, accident pay, past medical and nursing home expenses, money paid or payable under s45 of the Motor Accidents Act 1998 or s83 of the Motor Compensation Act 1999 or otherwise.

4. Interest will not be recoverable by the plaintiff of that part of the judgment sum covered by any such deduction.

5. The plaintiff agrees to pay out of the judgment sum in paragraph 1 any amount repayable by the plaintiff for workers compensation, social services, sick leave payments, make-up pay, accident pay, past medical or nursing home expenses or otherwise which may not have been deducted by the defendant’s insurer under these terms, and/or pay to the parties entitled all outstanding medical, hospital, ambulance and other out-of-pocket expenses.

9. No interest shall be payable in respect of the judgment herein provided same be paid within 28 days of:

(a) the date of judgment;

(b) receipt by the defendant’s solicitor of a signed authority to receive;

(c) receipt by the defendant’s solicitor of a sealed copy of these consent orders;

(d) receipt by the defendant’s solicitor of a notice of charge from Centrelink;

(e) receipt by the defendant’s solicitor of a notice of settlement signed by or on behalf of the plaintiff for submission to Medicare Australia.”

[33] It is at least arguable that these terms of the Offer of Compromise would preclude a court from being satisfied that for the purposes of r 42.15 the judgment was “no more favourable” than the offer. In the absence of the admission of further evidence, or at least analysis based on the existing evidence about the financial impact of various of these provisions, it is difficult to see how the Court could be so satisfied. As this Court has not been put in a position to determine this issue, it would need to be remitted to the District Court for determination.

[34] This Court would also not be in a position to decide whether an order “otherwise” should be made for the purposes of r 42.15(2). The argument before this Court identified, without fully addressing, contentions as to whether the respondent’s rejection of the Offer of Compromise was reasonable. The mere fact that the rejection of an Offer of Compromise is reasonable is not enough to displace the rule but the reasonableness of the rejection remains a relevant consideration in the exercise of the court’s broad discretion to “order otherwise” (The Uniting Church in Australia Property Trust (NSW) v Takacs (No 2) [2008] NSWCA 172 at [15] and [18], compare [32]-[33]; Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd) (No 2) [2014] NSWCA 391 at [48], [60] and [61]).

….

[41]In conclusion I emphasise the following salutary observations of Allsop P in Kable v State of New South Wales (No 2) [2012] NSWCA 361 at [2], made with the concurrence of Campbell and Meagher JJA:

“Rules 36.15, 36.16, 36.17 and 36.18 deal with important questions concerning variation of orders of the Court. Rule 36.16 is particularly important. It deals with the fundamentally important question of finality of litigation: see in particular subrules (3A), (3B) and (3C). Parties should not think that they can, at their choice, avoid the operation of the Rules by less formal communication. The Rules take their form because of the regularity and good order promoted by the procedures there set down in respect of such an important topic. Too often practitioners consider that they can say something on the occasion of delivery of judgment or send an email to judge’s chambers (the latter sometimes, though not here, without the knowledge of the other side – a serious breach of professional etiquette and possibly a breach of duty to the Court) and thereby hold their client’s position, irrespective of the Rules. The profession should understand that this is not the case.

[42] There was in the present case, contrary to these observations, a neglect of the formal yet simple requirements of the UCPR. If the appellant had, as he should have, filed within 14 days of 31 August 2018 a notice of motion seeking variation of Levy DCJ’s costs order, his application would have been determined without the unnecessary and expensive procedural distractions referred to in this judgment.

Boateng v Dharamdas [2019] NSWCA 233

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