South Sydney Council v Morris (No 3) [2001] NSWCA 200

New South Wales Court of Appeal

CITATION : South Sydney Council v Morris (No 3) [2001] NSWCA 200 FILE NUMBER(S) : CA 40263/99 HEARING DATE(S) : Decided on written submissions JUDGMENT DATE : 28 June 2001

PARTIES : South Sydney Council (Appellant) Teresa Morris (Respondent) JUDGMENT OF : Meagher JA at 1; Heydon JA at 2; Fitzgerald AJA at 17

LOWER COURT JURISDICTION : District Court LOWER COURT DC 5713/96 FILE NUMBER(S) : LOWER COURT Moore DCJ JUDICIAL OFFICER :

COUNSEL : S Rares SC/V M Heath (Appellant) C Evatt (Respondent) SOLICITORS : Phillips Fox Lawyers (Appellant) Newman & Associates (Respondent)

LEGISLATION CITED : Supreme Court Act 1970 Ettingshausen v Australian Consolidated Press (1995) 38 NSWLR 404 CASES CITED: Fotheringham v Fotheringham (No 2) (1999) 46 NSWLR 194 Oshlack v Richmond River Council (1998) 193 CLR 72 DECISION : See paragraph 15

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40263/99 DC 5713/96

MEAGHER JA HEYDON JA FITZGERALD AJA

28 June 2001

SOUTH SYDNEY COUNCIL v Teresa MORRIS [No 3] JUDGMENT

1 MEAGHER JA: I agree with Heydon JA. 2 HEYDON JA: On 28 June 2000 the court announced that it dismissed the appeal with costs. The respondent indicated that she wished to contend that there should be an indemnity costs order in relation to the costs of the appeal in her favour, and the parties have filed written submissions about this as directed. 3 The respondent submitted she was entitled to an indemnity costs order in relation to the costs of the appeal on two grounds. The first ground rested on the making of an offer of settlement the night before the appeal was called on for hearing, and was said to depend on the inherent jurisdiction of the court. This ground was rejected in South Sydney Council v Morris [No 2] (16 August 2000) [5]-[7]. 4 The second of the grounds on which the respondent sought an indemnity costs order was that pre-trial offers of 12 December 1997 and 28 April 1998 made pursuant to Pt 19A of the District Court Rules can affect the costs of the appeal. The offers were to settle for $6,000 plus costs. In South Sydney Council v Morris [No 2] it was decided that that aspect of the application should not be determined until the trial judge delivered judgment on the question of what costs order should be made in relation to the trial. 5 On 4 June 2001 the trial judge delivered judgment on that question. His order was: "The Plaintiff should have her costs assessed on a solicitor and client basis, with the exception of the costs incurred solely in connection with the arbitration. The defendant is to have the latter costs on a party and party basis." 6 The essential reason why the trial judge made that order rested on Pt 39A r 25(4) of the District Court Rules, which provided: "Where an offer is made by a plaintiff 28 days or more before the hearing of the action commences, and the offer is not accepted by the defendant, and the plaintiff obtains an order or judgment on the claim to which the offer relates no less favourable to the plaintiff than the terms of the offer, then, unless the Court in an exceptional case and for the avoidance of substantial injustice otherwise orders, the plaintiff shall be entitled to an order against the defendant for the plaintiff's costs in respect of the claim assessed on a solicitor and client basis."