Supreme Court New South Wales Medium Neutral Citation: Norris v Routley [2016] NSWSC 147 Hearing dates: 5 February 2016 Date of orders: 02 March 2016 Decision date: 02 March 2016 Jurisdiction: Common Law Before: Harrison J Decision: 1. Make no order for the payment of the plaintiff's costs of the proceedings. 2. Order the plaintiff to pay the defendant's costs thrown away or occasioned by reason of the abandonment of her loss of personal income claim. 3. Order the plaintiff to pay the defendant's costs on and from 25 June 2014 on an indemnity basis. Catchwords: COSTS – indemnity costs – offer of compromise – where plaintiff obtains an order no more favourable than defendant's offer of compromise – whether non-admission and non-disclosure terms invalidate offer of compromise – whether the value of a favourable finding on the question of liability can be brought to account in the assessment of whether the result in proceedings was more or less favourable than the terms of the offer COSTS – UCPR 42.34 – where plaintiff recovers less than amount sued for and less than $500,000 – whether commencement and continuation of the proceedings in the Supreme Court rather than the District Court was warranted Legislation Cited: Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005 Cases Cited: Byrd & Byrd [2010] Fam CA 547 Calderbank v Calderbank [1975] 3 WLR 586 Evans Shire Council v Richardson [2006] NSWCA 61 Futhem Pty Ltd v Mills [2012] NSWDC 127 Jell & Jell [2009] Fam CA 960 Ji v Firth t/as Firths the Compensation Lawyers [2013] NSWSC 186 Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344 Morgan v Johnson (1998) 44 NSWLR 578 Newcrest Mining Limited v Thornton [2012] HCA 60; (2012) 248 CLR 555 Perisher Blue Pty Ltd v Nair Smith (No 2) [2015] NSWCA 268 Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368 Sabah Yazgi v Permanent Custodians Limited (No 2) [2007] NSWCA 306 Taylor v The Owners – Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531 Whitney v Dream Developments Pty Ltd [2013] NSWCA 188 Category: Costs Parties: Dr Mary Helen Norris (Plaintiff) Dr Douglas Routley (Defendant) Representation: Counsel: D R Toomey SC and S Holmes (Plaintiff) Z Heger (Defendant) Solicitors: Whiteley, Ironside & Shillington (Plaintiff) Avant Law Pty Ltd (Defendant) File Number(s): 2013/111968 Publication restriction: Nil Judgment 1. HIS HONOUR: Dr Norris succeeded in recovering a judgment against Dr Routley for $21,757. The only remaining issue in the proceedings is the question of costs. Dr Norris contends that she should have an order for the whole of her costs in accordance with the general rule that costs follow the event. 2. Although he accepts that the general rule is that costs follow the event, Dr Routley contends that a different order should be made. His argument proceeds upon three bases as follows: 1. Dr Norris is not entitled to any order for costs because she is unable to demonstrate that the "commencement and continuation of the proceedings in the Supreme Court, rather than the District Court, was warranted": UCPR 42.34(2). 2. Dr Routley should have his costs of responding to Dr Norris's claim for lost income, which was abandoned on the second day of the hearing. 3. Dr Routley is entitled to indemnity costs from 25 June 2014 by reason of Dr Norris's rejection of his offer of compromise dated 24 June 2014 in the amount of $100,000: UCPR 42.15(2)(b)(i). 1. These arguments are considered in turn. UCPR 42.34 – proceedings "not warranted" 1. UCPR 42.34 is in these terms: "42.34 Costs order not to be made in proceedings in Supreme Court unless Court satisfied proceedings in appropriate court (1) This rule applies if: (a) in proceedings in the Supreme Court, other than defamation proceedings, a plaintiff has obtained a judgment against the defendant or, if more than one defendant, against all the defendants, in an amount of less than $500,000, and (b) the plaintiff would, apart from this rule, be entitled to an order for costs against the defendant or defendants. (2) An order for costs may be made, but will not ordinarily be made, unless the Supreme Court is satisfied the commencement and continuation of the proceedings in the Supreme Court, rather than the District Court, was warranted." 1. Dr Norris bears the onus of displacing the general rule by establishing that the commencement and continuation of the proceedings in this Court was warranted: Ji v Firth t/as Firths the Compensation Lawyers [2013] NSWSC 186 at [30]. In this case the District Court would, with the benefit of hindsight, have had jurisdiction to deal with the proceedings. Dr Routley submitted that the case was not factually or legally complex. He submitted that the key issue was whether Dr Norris had a realistic chance of securing an award of damages in excess of $750,000. 2. Dr Routley contended that it should have been clear from the outset that Dr Norris had little prospect of obtaining an award of damages in excess of even $100,000, let alone $750,000. Dr Norris's claim for the loss of her own income was not precluded by s 12(2) of the Civil Liability Act 2002 when the proceedings commenced, because the decision in Taylor v The Owners – Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531 was then yet to be delivered. However, Dr Norris's claim for her own income was, according to Dr Routley, at least "problematic" because her lost income was said to flow from the fact that she had to restrict the growth of her practice in order to provide the services previously provided by her husband. A claim that took account of her lost income as well as the loss of those services would therefore obviously have been double counting. Only one of those claims could have succeeded. 3. Dr Routley argued in such circumstances that realistically it was only the claims for Mr Norris's lost income, the value of his domestic services and the funeral costs that remained. He emphasised that even with the benefit of several very favourable factual findings, the ultimate arithmetical result was that Dr Norris's post mortem gains were greater than her losses. 4. Furthermore, even if it was not clear at the commencement of the proceedings that Dr Norris had limited prospects of recovering damages in excess of $750,000, it became clear after Taylor was decided on 5 April 2014. As a consequence s 12(2) imposed a limit upon Dr Norris's earnings as opposed to her husband's earnings, and she abandoned her claim for her earnings as a consequence. Dr Norris continued to claim damages in the amount of $822,040 but that claim was reliant to a large extent upon the assumption that Mr Norris would only have consumed 70 percent of his own income, as opposed to any percentage of the joint household income. 5. Dr Norris's response is that when the proceedings were commenced Taylor had not been decided and her legal representatives held the view that she had good prospects of recovering damages in excess of the jurisdictional limit of the District Court. Liability had not been admitted when the proceedings were commenced and the litigation involved complex issues on liability, causation and the assessment of damages. Consideration 1. The terms of the rule provide, in effect, that the making of a costs order in favour of Dr Norris in this case would be abnormal, unusual or extraordinary and possibly even exceptional having regard to the amount recovered by her in the proceedings. That follows from the words "but will not ordinarily be made" as they appear in subrule (2). The rule does not proscribe the making of a costs order, which the subrule provides "may be made". However, the permissive nature of the rule is conditioned upon the notion that "the commencement and continuation of the proceedings…was warranted." "Warranted" is used in that context to mean justified. 2. It is trite to observe that whether or not the commencement and continuation of the proceedings in this Court was justified curiously requires a decision in retrospect about the wisdom of making the same decision looking forward. It is therefore very important to ensure that the benefit of hindsight does not infect a critical analysis of the decision in question, obviously made without the same advantage. The known certainty of what has now transpired should not be used to limit or reduce an appreciation of the very difficult task of assessing or predicting a multifaceted litigious outcome. 3. It is obvious that the rule has nothing to do with comparative judicial competence or cost disadvantages for lawyers. The District Court of New South Wales is favoured with a vast collection of judges of the highest skill and competence with an immense wealth of significant experience. With the departure of scales of professional costs and the universal application of the costs assessment system, there is also no remaining financial incentive for bringing proceedings in one court rather than another. The sole justification for the rule can now only be the rational and efficient allocation of business between courts with equivalent resources that are able to deal with it. 4. The present proceedings were not particularly difficult or complex. The financial and accounting evidence was detailed and well prepared by eminent experts retained by each side. The issues to which this accounting evidence was directed were, however, hardly novel either conceptually or factually. 5. In contrast, the medical liability issues were potentially quite difficult. Dr Norris contended that her husband's death was the result of a failure to arrange for a liver transplant in a timely way. The subject matter of the claim was therefore to some extent novel or at least unusual. Dr Routley's liability also depended upon Dr Norris's ability to demonstrate a causal connection between his alleged breach of duty, which was in issue long after the commencement of the proceedings, and her husband's premature death. Dr Routley's ultimate admission of liability ought not to cloud the significance of that contest when the proceedings were being contemplated or when the wisdom of their continuation in the face of a denial of liability remained uncertain. 6. The burden of Dr Routley's contentions on this issue is that his offer of compromise in the middle of 2014 was the direct result of a careful and reasoned consideration of the value of Dr Norris's case. Dr Norris should have applied the same amount of care and reason to it herself. Even if there was or may have been some doubt about the validity of the sums claimed by Dr Norris when the proceedings were commenced, the continuation of the proceedings in this Court following correspondence between the solicitors about what the claim was worth could not have been warranted in the light of what that correspondence revealed. The letter dated 24 October 2014 written by Dr Routley's solicitor to Dr Norris's solicitor is an exemplar of the way in which the perceived difficulties confronting Dr Norris were clearly highlighted. Among other things, that letter pointed out that, on one view of the evidence, Dr Norris would not be able to demonstrate any loss at all. Dr Routley contends that Dr Norris could and should herself have come to the same conclusion. 7. I have not a little sympathy for those entrusted with the decision of where to commence these proceedings. In my experience it is a decision that is often influenced by non-legal and emotional considerations that cannot lightly be disregarded. In accordance with the caution to which I have earlier referred, I have attempted to assess the decision prospectively, and not with the benefit of facts that have spawned the need to consider the rule in question. Taking those matters into account, I remain confronted with the fact that Dr Norris recovered a very modest sum indeed, and not without persistent warning from her opponent that such a result was likely. The continuation of the proceedings in this Court was clearly not warranted and I fear that their commencement falls into the same category. 8. Although costs would ordinarily follow the event of Dr Norris's success, the proper order in the circumstances is that I make no order with respect to her costs. Costs thrown away 1. Dr Routley contended that he should have the costs of that part of the case abandoned by Dr Norris following the decision in Taylor. Even though the abandonment of that part of the claim did not involve an amendment to the pleadings, it did constitute a discrete claim to which Dr Routley was required to respond. That included the marshalling of expert accounting evidence, the need for part of which fell away with the claim for Dr Norris's lost earnings. 2. Dr Norris did not specifically respond to this contention, relying instead upon the proposition that costs should follow the event and that the abandoned claim should not operate so as to derogate from the overall success that she achieved. Consideration 1. It is difficult to see how Dr Routley's contentions can be avoided. Even though the pleadings were not amended to reflect what happened, the case proceeded upon a number of factual and legal bases of which at least one was abandoned by Dr Norris. It is not to the point that the costs thrown away or occasioned by the discarded claim may be small. As a matter of fairness, Dr Routley unnecessarily expended costs on the defence of part of Dr Norris's claim that were wasted. Dr Norris should be required to pay those costs. Indemnity costs 1. The principal area of disagreement between the parties concerns the operation and effect of Dr Routley's offer of compromise. It was in the following terms: "The defendant offers to compromise the whole of these proceedings on the following terms: 1. By paying to the plaintiff the sum of $100,000. 2. This offer does not include an amount for costs. 3. This offer is made in accordance with rule 20.26 of the Uniform Civil Procedure Rules. 4. The plaintiff may be liable to repay amounts under the Health and Other Services (Compensation) Act 1995 or the Health and Other Services (Compensation) Care Charges Act 1995 as a result of a settlement being agreed in this matter. This offer is made on the condition that these amounts will be deducted from the settlement money. 5. This offer is made on the condition that should the plaintiff accept this offer then the plaintiff will cause to be executed a consent judgment/order in the following terms: By consent and without admission of liability: 1. Judgment for the plaintiff against the defendant in the sum of $100,000 ('the settlement sum'). 2. The defendant is at liberty to deduct and pay from the settlement sum any statutory refunds repayable to any state or commonwealth government or statutory authority as required by law and to pay any refund to a third party as required by law or agreed between the plaintiff and the defendant. 3. The defendant will deduct and pay any refunds in accordance with paragraph 2 and will pay the balance either directly to the plaintiff or in accordance with written authority received from the plaintiff. 4. Settlement funds shall be paid by the defendant within 28 days of the last of the following occurring: (a) service by the plaintiff on the defendant of an original of this Consent Judgment sealed by the Court, or (b) receipt by the defendant of a recovery notice or clearance from Centrelink, or (c) receipt by the defendant of a completed Medicare Notice of Judgment or Settlement form pursuant to section 23 of the Health and Other Services (Compensation) Act 1995; or (d) receipt by the defendant of a signed authority to receive. 5. No interest will be payable in respect of the settlement monies provided that the settlement monies are paid within 28 days of the last event referred to in paragraph 4. Interest will only be payable on the settlement sum net of any deductions made in accordance with paragraph [sic, 2] 6. The Court notes the agreement of the parties that that [sic] these terms are not to be disclosed except: (a) as required by law; or (b) as required to give effect to the agreement between the parties. This offer is open for acceptance by the plaintiff for 28 days." 1. UCPR 20.26 is relevantly as follows: "20.26 Making of offer (1) In any proceedings, any party may, by notice in writing, make an offer to any other party to compromise any claim in the proceedings, either in whole or in part, on specified terms. (2) An offer under this rule: (a) must identify: (i) the claim or part of the claim to which it relates, and (ii) the proposed orders for disposal of the claim or part of the claim, including, if a monetary judgment is proposed, the amount of that monetary judgment, and (b) if the offer relates only to part of a claim in the proceedings, must include a statement: (i) in the case of an offer by the plaintiff, as to whether the balance of the proceedings is to be abandoned or pursued, or (ii) in the case of an offer by a defendant, as to whether the balance of the proceedings will be defended or conceded, and (c) must not include an amount for costs and must not be expressed to be inclusive of costs, and (d) must bear a statement to the effect that the offer is made in accordance with these rules, and (e) if the offeror has made or been ordered to make an interim payment to the offeree, must state whether or not the offer is in addition to that interim payment, and (f) must specify the period of time within which the offer is open for acceptance. (3) An offer under this rule may propose: (a) a judgment in favour of the defendant: (i) with no order as to costs, or (ii) despite subrule (2) (c), with a term of the offer that the defendant will pay to the plaintiff a specified sum in respect of the plaintiff's costs, or (b) that the costs as agreed or assessed up to the time the offer was made will be paid by the offeror, or (c) that the costs as agreed or assessed on the ordinary basis or on the indemnity basis will be met out of a specified estate, notional estate or fund identified in the offer. (4) …" 1. UCPR 42.15 provides as follows: "42.15 Where offer not accepted and judgment no more favourable to plaintiff (1) This rule applies if the offer is made by the defendant, but not accepted by the plaintiff, and the plaintiff obtains an order or judgment on the claim no more favourable to the plaintiff than the terms of the offer. (2) Unless the court orders otherwise: (a) the plaintiff is entitled to an order against the defendant for the plaintiff's costs in respect of the claim, to be assessed on the ordinary basis, up to the time from which the defendant becomes entitled to costs under paragraph (b), and (b) the defendant is entitled to an order against the plaintiff for the defendant's costs in respect of the claim, assessed on an indemnity basis: (i) if the offer was made before the first day of the trial, as from the beginning of the day following the day on which the offer was made, and (ii) if the offer was made on or after the first day of the trial, as from 11 am on the day following the day on which the offer was made." 1. Dr Routley contended that the offer complied in all respects with UCPR 20.26(2)(a),(c),(d) and (f), that Dr Norris did not obtain an order or judgment on her claim that was more favourable to her than the terms of the offer and that I would not order otherwise than to award indemnity costs in accordance with UCPR 42.15(2). In the alternative, Dr Routley submitted that he was entitled to an order for indemnity costs upon the basis that his offer operated in accordance with the principles discussed in Calderbank v Calderbank [1975] 3 WLR 586. 2. Dr Norris responded in considerable detail in opposition to the making of an indemnity costs order against her. She reasoned in two stages. The first stage involved a series of arguments complaining that Dr Routley's offer of compromise was not valid. The second stage proceeded upon the basis that if the offer of compromise was valid, costs should nevertheless not be ordered against her on an indemnity basis in the events that occurred. First stage – was the offer of compromise a valid offer? 1. Dr Norris's several arguments at this stage were as follows. 2. First, paragraph five of the offer of compromise invalidated it completely. It included terms into which Dr Norris would have been required to enter if the offer had been accepted. Those terms did not contain a statement that they did not include an amount for costs and were therefore specifically at odds with the preceding four paragraphs. 3. Secondly, the proposed orders for the disposal of the claim contained in paragraphs one to four of the offer of compromise were "rendered redundant" because in order to accept the offer, Dr Norris would have been required to "cause to be executed a consent judgment/order" in the terms provided. According to Dr Norris, that foreclosed the Court's discretion to award costs, and instead mandated a closed set of orders for execution. In brief, Dr Norris contended that the inclusion of paragraph five would mean that if Dr Norris had accepted the offer she would, in breach of the Uniform Civil Procedure Rules, have been required to forego any entitlement to costs. An offer that interferes with the Court's discretion as to costs is invalid: Whitney v Dream Developments Pty Ltd [2013] NSWCA 188. 4. Thirdly, Dr Norris contended that because liability remained in issue at the time when the offer of compromise was served, the judgment proposed by the offer of compromise did not determine all issues between the parties to the extent that the non-admission of liability left that issue unresolved. It was to that extent therefore an invalid offer as it did not in terms dispose of the whole of the proceedings. 5. Fourthly, an offer of compromise containing a term that the judgment to be entered is not to be disclosed contravenes UCPR 36.1A(3). UCPR 36.1A provides as follows: "36.1A Consent orders (1) The court may give judgment, or order that judgment be entered, in the terms of an agreement between parties in relation to proceedings between them. (2) Unless the court, for special reasons, otherwise orders, the court must refuse to give judgment, or order that judgment be entered, in terms that restrict, or purport to restrict, any disclosure of the terms of the judgment or order. (3) Subrule (2) does not limit the effect of any agreement between the parties that contains provisions that restrict the parties, or purport to restrict the parties, from disclosing the terms of the agreement or of the judgment or order." 1. Dr Norris accepted that if the parties had simply agreed terms, including a notation restricting disclosure, which they asked the Court to enter, the effect of the agreed non-disclosure term would have been limited due to the operation of UCPR 36.1A(3). However, for presently relevant purposes, the parties had not agreed but were in the course of attempting to do so. Dr Norris submitted that the offer of compromise could not have been an offer to "compromise any claim in the proceedings", as required by UCPR 20.26(1), if it included a term that would have required the Court, in accordance with UCPR 36.1A(2), to decline to give judgment. The non-disclosure term was on this analysis not an agreed term that could have been saved by UCPR 36.1A(3). 2. Dr Routley responded as follows. Dr Norris's approach proceeds on the basis that for an offer of compromise to be "valid", meaning one that attracts the operation of UCPR 42.15, the orders proposed in Dr Routley's offer must be orders that the Court could have made had the offer been rejected and the matter proceeded to judgment. That proposition is neither expressly nor impliedly to be found in any relevant rules, in particular UCPR 20.26, nor is it supported by authority. 3. UCPR 20.26(1) permits a party to make an offer on "specified terms". Terms that the orders giving effect to the proposed settlement should include a reference to the orders being made "without admission of liability" or that they are "not to be disclosed except as required by law or…to give effect to the agreement between the parties" are permissible. An offer may be invalid if it contains terms that the Court had no jurisdiction to make if the offer had been accepted, but the terms in question are not of such a kind. They do not form part of what would have become the operative orders of the Court but are instead in the nature of notations recording the circumstances in which the orders are made: see Byrd & Byrd [2010] Fam CA 547 at [27]; Jell & Jell [2009] Fam CA 960 at [40]. 4. Dr Routley submitted that the non-admission of liability term merely reflected the fact that at the time that the offer was made, the liability issue was unresolved. The letter accompanying the offer of compromise stated: "The offer of compromise makes no discount for the as yet unresolved liability issues." 1. A notation of this kind is not unusual. In Newcrest Mining Limited v Thornton [2012] HCA 60; (2012) 248 CLR 555 at [17] French CJ observed: "[17] A consent order of the kind made in this case can properly be described as an order which expresses an agreement in a more formal way than usual. It may be set aside on any ground which could invalidate the agreement[14]. It is, nevertheless, an order. However, when a consent order in favour of a plaintiff gives effect to an agreement which does not involve any admission of liability in respect of any cause of action asserted by the plaintiff, it cannot be taken as reflecting an admission of liability or as a determination of liability by the court. …" 1. The non-disclosure term merely "notes" the parties' agreement regarding disclosure and is also not unusual. In Futhem Pty Ltd v Mills [2012] NSWDC 127 at [7], Gibson DCJ observed: "[7] The provision for terms not to be disclosed has always been an agreement between the parties, not an undertaking to the court. As such, it is appropriate as a notation, and not an order, as Refschauge J noted in Singh v Calvary Hospital ACT Inc [2008] ACTSC 118; (2008) 164 ACTR 44 at [24]- [25]: '[24] The settlement was resolved not by judgment for a sum in favour of the plaintiff but by a compromise. Thus, even though the terms of the compromise were, it appears, to be confidential between the parties, it would appear that nothing I was asked to do would impinge on the well-established principle of openness in the court enunciated in National Bank of Australasia Ltd v Solar and Anor (1977) 14 ACTR 1. [25] The approach I was asked to take can, perhaps, be accurately said to be that adopted by Moffitt J in McWilliams v McWilliams(1967) 87 WN (Pt 1) (NSW) 6, at 7 where his Honour noted: The settlement, which the parties agreed was on terms not to be disclosed, was for the sum of [amount not included in report]. The agreement about non-disclosure, of course, was merely an agreement between the parties which I noted and, in accordance with my usual practice, I have not made any order of the court concerning this matter because in this case, as in other cases, it may be necessary for the terms to be disclosed in certain places either in connection with the working out of the terms of settlement, or for other reasons. However, subject to that, I would expect persons concerned to respect the agreement of the parties'." 1. According to Dr Routley, each term is simply a notation involving no question of the Court's power or lack of it. UCPR 36.1A(2) is not relevant. It does no more than preclude a Court from giving or entering judgment in terms that restrict its disclosure unless for "special reasons" the Court otherwise orders. Paragraph six of the proposed orders imposes no restriction upon the parties. Rather, it records an agreement between them that would itself have that effect. 2. More fundamentally, Dr Routley argued that Dr Norris's suggested basis for invalidity was otherwise flawed. The proposed orders were drafted upon the assumption that the offer would be accepted. In that sense the orders reflected what would have come into effect by agreement. It is beside the point to ask whether the Court could have made the orders in the absence of agreement. Consideration 1. In my opinion, the not inconsiderable ingenuity of Dr Norris's several arguments is matched only by its incorrectness. 2. First, the clear terms of the offer, which included a proposal for the form of the settlement terms that Dr Routley was inviting Dr Norris to accept, included a separate and specific indication that it did not include an amount for costs. Expressed in the plainest of words, Dr Routley offered to settle the litigation on terms that, if accepted, would have entitled Dr Norris to an order for costs. Paragraph five of the offer was clearly intended to specify the terms of the consent judgment/order that it was proposed would be executed if the offer of compromise were accepted. Nothing in paragraph five or the terms proposed or the offer in general seems to me to dilute the operation or effect of paragraph two which clearly specified that the offer did not include an amount for costs. 3. Nor, secondly, for precisely the same reasons do the terms of paragraph five expressly or by implication mandate that Dr Norris would have been required to forego her entitlement to costs. 4. Dr Norris's third point is conspicuously devoid of any merit whatsoever. If Dr Norris had accepted the offer of compromise it would have put an end to the proceedings completely. The settlement of proceedings in which all issues remain in contest or where some have been admitted produces no different result. The offer was in terms made upon the basis that it was proposed to compromise the whole of the proceedings. If there is anything ambiguous or uncertain about that fact, I fail to see it. 5. Dr Routley's responses to Dr Norris's fourth point are to my mind a complete answer. The non-admission and non-disclosure terms were no more than notations. The terms did not require the Court to make orders that it was neither empowered nor permitted to make. The notations only came into effect as an adjunct to the agreement proposed by the offer of compromise. I accept that it is beside the point to ask whether the Court would or could have made orders in the absence of the contemplated agreement. The proposed orders were drafted upon the assumption that the offer would be accepted. The terms in question did not create a legal impediment to Dr Norris's acceptance of the offer had she been so minded. 6. Dr Norris did not contend that the offer was invalid either because it was not a genuine offer or upon any other ground. In my opinion Dr Routley's offer of compromise was clearly a valid offer. Second stage – "unless the court otherwise orders" 1. Dr Norris relied upon three individual propositions at this stage. These are considered in turn. 2. First, UCPR 42.15 is not engaged because she did not obtain "an order or judgment on the claim no more favourable to [her] than the terms of the offer". 3. In contending that she obtained an order more favourable than Dr Routley's offer, Dr Norris acknowledged that she could not support that argument solely on an arithmetical comparison between what she recovered and what she was offered. As Dr Routley has conceded, the judgment in Dr Norris's favour carries with it either a finding, or (as here) an admission, of liability. Dr Norris contends that the proceedings were as much an attempt by her to vindicate a perception that her husband's death was avoidable and that her successful efforts to establish Dr Routley's liability for what occurred had a value that transcended any monetary formulation. In the same sense, the value of an offer cannot only or always be assessed in purely dollar terms, as the example of an offer of compromise agreeing to consent to an injunction or the making of a declaration tends to suggest. 4. Dr Norris drew upon what has been recognised as the purpose of the rule, "to encourage the proper compromise of litigation, in the private interests of individual litigants and the public interest of the prompt and economical disposal of litigation" with the aim of encouraging "the offeree to give serious thought to the risk involved in non-acceptance": see Morgan v Johnson (1998) 44 NSWLR 578, 581-2. This approach accords with the sentiment that underpins the "overriding purpose" referred to in s 56 of the Civil Procedure Act 2005. 5. Dr Routley's offer of compromise was made upon the basis that there would be no admission of liability by him. Liability was not admitted until well after the offer of compromise had expired. The purpose of the rule was to encourage the resolution of the real issues in dispute, of which one was Dr Routley's fault. Dr Norris argued that it was "entirely illogical to suggest that no value can be ascribed to a term which specifically excludes the determination of a real issue." In her case in fact, if not potentially in most such cases, the liability of the defendant was a matter of real significance and accordingly had a value. Rhetorically, Dr Routley's concern to exclude any suggestion of his own liability for the death of the deceased supported the proposition that the matter was far more than a mere formality. Dr Norris contended that the value of a favourable finding on the question of liability could legitimately be brought to account in the assessment of whether the result in the proceedings was more or less favourable to her than the terms of the offer. 6. Dr Routley accepted that UCPR 42.15 is not limited to a comparison only of the monetary amounts involved. The rule directs attention to the "order or judgment on the claim". For example, in Sabah Yazgi v Permanent Custodians Limited (No 2) [2007] NSWCA 306, the Court compared relief granted in the form of injunctions and declarations with the relief proposed in the offer of compromise, which also included monetary orders, in the context of a dispute about a defaulting mortgagor and possession of land. However, no cases appear to have dealt with the question of whether or not an admission or finding of liability or the public nature of a court's decision can be utilised in the inquiry. The rule is not concerned with the anterior or supporting reasons for the relief that is granted. 7. According to Dr Routley, the issue becomes one of certainty. Whatever attraction Dr Norris's argument might have, there is no reoccurring or calculable way in which the value of non-monetary factors can be compared with offers of compromise expressed as a sum of money or in a way that is readily convertible to a money sum. Emotional and sentimental influences, however real or important, cannot consistently be valued or evaluated with any certainty. That is a problem both for anyone attempting to formulate an offer as well as for anyone attempting to decide whether or not to accept it. Significantly, Dr Norris has led no evidence in an attempt to explain or assess the value that she contends should be attributed to vindication or victory. Dr Routley contends that I am in no better position to do so. 8. Secondly, and alternatively, Dr Norris contended that if she did obtain "an order or judgment on the claim no more favourable to [her] than the terms of the offer", I should "otherwise order" and not award indemnity costs to Dr Routley. 9. UCPR 42.15 does not displace the Court's broad discretion as to costs conferred by s 98 of the Civil Procedure Act and the discretion to award costs remains at large. Whether the relevant discretion to order otherwise requires exceptional circumstances or whether it is to be exercised having regard to all of the circumstances of the case appears to be currently undecided: see, for example, Perisher Blue Pty Ltd v Nair Smith (No 2) [2015] NSWCA 268 at [32]-[38]. However, dealing with UCPR 42.14, 42.15 and 42.15A, the Court of Appeal in Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368 said this at [15]: "[15]…Santow JA…considered the guiding rules relating to offers of compromise made under Pt 39A of the District Court Rules 1973. Part 39A, r 25(6) expressly provided that the adverse costs consequences following a failure to accept an offer of settlement applied '[u]nless the Court in an exceptional case and for the avoidance of substantial justice otherwise [ordered]'. Rules 42.14, 42.15 and 42.15A are in different terms. They provide that, when the relevant costs rule is engaged, a party is entitled to indemnity costs from a specified time (usually one day after an offer of compromise is made), 'unless the court orders otherwise' (emphasis added). The relevant provisions of these rules do not specify that exceptional circumstances or the avoidance of substantial injustice must be established before the court will make a different order to the prima facie order for which the rules provide and, in our opinion, the rule should not be so construed. Rather, the discretion is one that has to be exercised having regard to all the circumstances of the case." 1. For her part, Dr Norris expressed a preference for Santow JA's approach, but ultimately contended that I should order otherwise whatever approach was taken. 2. In Perisher Blue Pty Ltd v Nair Smith (No 2) at [28], the Court said this: "[28] In relation to rr 42.14, 42.15 and 42.15A, the onus lies on the party seeking to displace the presumptive rule: Curtis v Harden Shire Council (No 2) [2015] NSWCA 45 at [27] (rr 42.14, 42.15) ; Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd) (No 2) [2014] NSWCA 391 at [45] (r 42.15A). The same view should be taken in relation to the question of onus in r 42.13A." 1. In support of her contentions in this respect, Dr Norris maintained the following: 1. Despite Dr Routley continually maintaining that he was not liable, Dr Norris was entitled to be confident that she would succeed on the issues of breach of duty and causation. 2. The amount of damages at stake was potentially large. 3. The offer of compromise was modest. 4. The offer did not allow for the payment of costs or disbursements. 5. Dr Norris's disbursements were then almost $61,000 in addition to significant accrued professional costs. 1. Dr Norris re-emphasised in the present context that her consideration of the offer of compromise involved more than an uncomplicated assessment of the amount offered. She reiterated her contentions that the finding of liability and the public nature of the result were important and valuable and that foregoing the prospect of a litigious vindication was self-evidently of significance to her. In her submission, the attainment of that vindication was alone a sufficient basis for me to order otherwise. Dr Norris even went as far as to submit that I should order that Dr Routley pay her costs on an ordinary basis in accordance with UCPR 42.1. 2. Dr Routley in response contended that neither the circumstances of the case in general nor any possible exceptional circumstances in particular justified a departure from the ordinary costs order under UCPR 42.15(2). Notations concerning public disclosure and non-admission of liability were both reasonable and commonplace. They could not on any view be described as exceptional. Liability had not been conceded at the time the offer was made and it was reasonable for Dr Routley to preserve his position in that respect. Publicity of the result was arguably inimical to Dr Routley's professional status, which was correspondingly worthy of protection. By the same token, the non-disclosure term did not bind third parties and the public record of this Court would bear witness to the fact that Dr Norris recovered $100,000 on her claim. That would have been a tacit recognition of a victory by her, even notwithstanding the non-admission term. 3. Thirdly, Dr Norris contended that if the offer operated as a Calderbank offer, Dr Routley has not demonstrated or established that it was unreasonable for Dr Norris to reject it. 4. Dr Norris emphasised that Dr Routley bore the onus of establishing that her rejection or non-acceptance of the offer operating as a Calderbank offer was unreasonable: Evans Shire Council v Richardson [2006] NSWCA 61; Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344 at [16]. She expressly relied upon her earlier submissions in this respect. Dr Norris maintained that she did not act unreasonably and that Dr Routley had not discharged his onus. 5. Dr Routley contended that none of the terms of his offer of compromise was unreasonable and did not, whether alone or in combination, justify Dr Norris's rejection of it. Consideration 1. In my opinion, Dr Norris's argument proceeds upon the false assumption that a settlement adjudging a defendant liable to pay money as a term of a settlement disposing of proceedings in their entirety, without a finding of fault but with an express non-admission of liability, is somehow less than a full and complete vindication of her decision to sue in the first place. It is a well-established principle of civil litigation and the calculation of damages to compensate for loss that the general aim of an award of damages in tort is to put the injured party in the position he or she would have been in if the tort had not occurred. Damages in tort aim to restore the claimant to the pre-incident position. Courts are with limited exceptions confined to awards of money calculated to compensate the injured party for his or her loss. 2. In the present proceedings Dr Norris claimed damages. She sought no other form or kind of relief. She utilised the process of the Court to claim a sum of money assessed in a way and calculated to compensate her for past and anticipated financial losses sustained or incurred as the result of the death of her husband. In that endeavour she succeeded. She would similarly have succeeded if she had accepted Dr Routley's offer of compromise. 3. In my view it is disingenuous to contend that the recovery of money by way of compensation for a claimed loss does not of itself vindicate the decision to sue in the first place. The payment of damages in accordance with an agreement to settle proceedings is in no different category. It is also somewhat naïve to suggest that anyone becoming aware of the outcome of proceedings involving the payment of agreed damages without an admission of liability would not in any event conclude that the defendant must have been worried about the possible outcome or agreed to settle to avoid being left in no doubt about it. 4. Money is the currency of compensation. As blunt an instrument of recompense as it may be, so far no alternative has been discovered. It is therefore in that context that offers of compromise are made and considered. It is in precisely the same context that offers of compromise fall to be compared with the litigated outcome. An assessment of whether a plaintiff has or has not obtained an order or judgment on the claim that is no more favourable to the plaintiff than the terms of the offer can only realistically be determined by comparing like with like. In this case, as is common, that comparison is to be made between the amount offered and the amount recovered. There is presently no discretionary mechanism for assessing the value of foregone litigious opportunities unless they are expressed in money terms or are otherwise capable of reduction to a monetary sum. This is not a case involving a claim for injunctive relief or a declaration of right. Dr Norris claimed money and was offered money. In the events that occurred, she was also successful in recovering an award of damages. These seem to me to be the only available factors that relevantly inform the comparison required under the rule. 5. Dr Norris obtained an order or judgment on her claim that was no more favourable to her than the terms of Dr Routley's offer of compromise. He is therefore entitled to the payment of his costs on an indemnity basis on and from 25 June 2014 unless I were to order otherwise. 6. However I do not propose to do so. Dr Norris's arguments that I should are no more than a reconstitution of those suggesting that she had in fact obtained a judgment more favourable to her than the offer of compromise. It does not seem to me that the particular circumstances of the case warrant the making of some different order. The circumstances are by no means exceptional. 7. I appreciate that the offer of compromise confronted Dr Norris and her legal advisers with a stark choice. It was undoubtedly intended to have that effect. Dr Norris's expectations and no doubt her hopes had been directed to a more significant result, as her expert accounting and financial advice appears to confirm. Acceptance of the offer of compromise would have required a significant recalibration of the approach taken by Dr Norris or on her behalf up until that time. 8. I reiterate that the non-admission of liability and non-disclosure terms do not elevate the offer of compromise into some different or exceptional class of case. Indeed, in my experience the inclusion of one or other if not both of these terms or notations is usual rather than unusual. There is no single feature of the offer of compromise in the particular circumstances of this case that suggests that the ordinary result should not follow Dr Norris's rejection of it. 9. Although it now becomes unnecessary to do so, I am satisfied that Dr Norris's rejection of the offer of compromise, operating as a Calderbank offer, was also unreasonable. Conclusions 1. In the result I consider that Dr Norris is not entitled to an order for her own costs but instead should be ordered to pay Dr Routley's costs on an indemnity basis from 25 June 2014. She should also be ordered to pay Dr Routley's costs thrown away or occasioned by that part of her claimed that was abandoned. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 March 2016