Council of the City of Canterbury v Milich [2013] NSWCA 215

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Council of the City of Canterbury v Milich [2013] NSWCA 215 Hearing dates: 10 July 2013 Decision date: 10 July 2013 Before: Basten JA at [1]; Barrett JA at [24]; Ward JA at [25] Decision: 1. Application for leave to appeal from the judgment in respect of the costs made in the Common Law Division by Davies J on 31 October 2012 is dismissed. 2. Applicant to pay the respondent's costs of the proceedings in this Court. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: COSTS - indemnity costs - offer of compromise - compliance with Uniform Civil Procedure Rules - defendant offered plaintiff $320,000 and to "pay plaintiff's costs" - offer required to be "exclusive of costs" - UCPR r 20.26 - Whitney v Dream Developments Pty Ltd [2013] NSWCA 188 applied

PROCEDURE - civil - interlocutory issues - whether applicant should have leave to challenge recent five-judge decision regarding offers of compromise - arguable reason for different conclusion not addressed in impugned judgment - desirability of certainty - where reasonable minds differ as to correct construction - no compelling reason to reconsider - relevant rule since amended Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), rr 20.26, 42.13A; 42.14, 42.15, 42.34 Uniform Civil Procedure Rules (Amendment No 59) 2013, Schedule 12, cl 1 Workers Compensation Act 1987 (NSW), ss 151H, 151Z Cases Cited: Milich v The Council of the City of Canterbury [2012] NSWSC 59 Milich v The Council of the City of Canterbury (No 2) [2012] NSWSC 450 Old v McInnes and Hodgkinson [2011] NSWCA 410 R v XY [2013] NSWCCA 121 Vieira v O'Shea (No 2) [2012] NSWCA 121 Whitney v Dream Developments Pty Ltd [2013] NSWCA 188 Category: Principal judgment Parties: The Council of the City of Canterbury (Applicant) Branislav Milich (Respondent) Representation: Counsel: R Sheldon SC/P Knowles (Applicant) Self-represented (Respondent) Solicitors: DLA Piper (Applicant) Self-represented (Respondent) File Number(s): CA 2012/370685 Decision under appeal Jurisdiction: 9111 Citation: Milich v The Council of the City of Canterbury (No 3) [2012] NSWSC 1280 Date of Decision: 2012-10-31 00:00:00 Before: Davies J File Number(s): SC 2008/315064