Roads And Traffic Authority v Jacques [No. 2] [2000] NSWCA 135

New South Wales Court of Appeal

CITATION : Roads And Traffic Authority v Jacques [No. 2] [2000] NSWCA 135 revised - 26/04/2007 FILE NUMBER(S) : CA 40684/98 HEARING DATE(S) : Decided on written submissions JUDGMENT DATE : 25 May 2000

PARTIES : Roads And Traffic Authority (Appellant) Paul Douglas Jacques (Respondent) JUDGMENT OF : Stein JA at 1; Fitzgerald JA at 2; Heydon JA at 14

LOWER COURT JURISDICTION : District Court LOWER COURT 6572/97 FILE NUMBER(S) : LOWER COURT Hughes DCJ JUDICIAL OFFICER :

COUNSEL : Mr D. Ronzani (Appellant) Mr B. Donovan QC / Mr C. Locke (Respondent) SOLICITORS : I V Knight - Crown Solicitor's Office (Appellant) John Simpson & Co (Respondent) CATCHWORDS : Costs - ND LEGISLATION CITED : Suitors Fund Act 1951 CASES CITED: Fowkes v Parker [No. 2] 113, unreported, 4 May 2000 DECISION : Respondent to pay 50 per cent of the appellant's costs of the appeal; but have a certificate under the Suitors Fund Act 1951, if qualified.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40684/98 DC 6572/97 STEIN JA FITZGERALD JA HEYDON JA

THURSDAY 25 MAY 2000

ROADS AND TRAFFIC AUTHORITY v JACQUES [No.2]

JUDGMENT COSTS

1 STEIN JA: I agree with Fitzgerald JA. 2 FITZGERALD JA: The respondent was seriously injured on 18 June 1990. He sued the appellant in the District Court. In a judgment delivered on 13 August 1998, that Court decided that negligence by both parties contributed to the respondent's injuries, apportioned responsibility 80 per cent against the appellant and 20 per cent against the respondent, assessed the respondent's total damages at $296,615, gave judgment for the respondent against the appellant in the sum of $237,532, and ordered the appellant to pay the respondent's costs. 3 On 11 April this year, this Court allowed the appellant's appeal to a limited extent. The judgment in favour of the respondent for $237,532, but not the order that the appellant pay the respondent's costs in the District Court, was set aside, and the action was remitted to the District Court for the respondent's past and future economic loss to be reassessed and his damages determined on the basis of the amounts which are arrived at for past and future economic loss on the retrial together with the other amounts already assessed by the District Court for "general damages", "Out of pocket expenses", "Future medicals", and interest. 4 The parties have since made written submissions concerning costs. 5 The respondent submitted that all decisions in relation to costs "ought properly be deferred until after judgment has been handed down by the District Court following the new trial in respect of damages for economic loss." 6 In part, that submission related to the costs of the first trial, which were awarded to the respondent by the District Court. As stated above, this Court allowed that order to stand on the appellant's appeal. The respondent has now made reference to offers of compromise which he made, initially on 1 April 1998, prior to the first hearing in the District Court, and again on 29 March 2000, between the first District Court judgment and the hearing of the appeal in this Court. According to the respondent's argument if the amount of the final judgment in his favour after the second trial in the District Court exceeds the amount of his first offer of compromise, he will or might be entitled to an order for indemnity costs in respect of the costs which were subsequently incurred, including the costs of the first trial. 7 The respondent did not cross appeal in respect of the costs order which was made by the District Court after the first trial, and his argument provides no basis for interfering with that order on the appellant's appeal. 8 The costs of the retrial in the District Court will be a matter for the District Court, which will then take into account, if appropriate, the offers of compromise made by the respondent. 9 The respondent also submitted that, depending on the amount of the judgment in his favour after the re-trial in the District Court, he might be entitled to the costs of the appeal on an indemnity basis. He argued that he is entitled to all or part of the costs of the appeal because the appellant abandoned many of its grounds of appeal, failed in respect of its challenge in relation to the extent of the respondent's contributory negligence, and only partially succeeded in respect of its challenge to the damages awarded to the respondent. 10 The appellant submitted that the respondent should be ordered to pay its costs of its partially successful appeal. 11 In the circumstances, the respondent should be ordered to pay only 50 per cent of the appellant's costs of the appeal. [1] 12 In view of the basis on which the appeal succeeded, the respondent, if qualified, should have a certificate under the Suitors Fund Act 1951. 13 I propose that the Court order that the respondent pay 50 per cent of the appellant's costs of the appeal but, if qualified, have a certificate under the Suitors Fund Act 1951. 14 HEYDON JA: I agree with Fitzgerald JA.