Alpine Holdings Pty Ltd & Ors v Warwick Entertainment Centre Pty Ltd & Ors [2003] WASC 53

Alpine Holdings Pty Ltd & Ors v Warwick Entertainment Centre Pty Ltd & Ors [2003] WASC 53 - WASC 2003 case summary — Zoe

[327]

"[67] The question posed by the Full Court's conclusion that Mr Henville failed to prove his damages is really a question as to who bears the onus of proof, and on what issue, in a case where contravening conduct is the cause of some but not all the loss in issue. The precise question is whether, in a case where loss results from two or more acts or events, s 82(1) requires a claimant to prove only the total loss that he or she suffered leaving it to the person whose conduct is in question to prove that some aspect of that loss is referable to other acts or events or whether, on the other hand, it requires a claimant to prove that a particular component or particular components of his or her loss are referable to the contravening conduct in question.

[68] Just as the relief available under s 82(1) is not to be confined by analogy either with the actions in tort or in contract, it should not be confined by imposing an unduly strict burden of proof on the claimant. As already indicated, s 82 provides for the recovery of loss or damage that a person suffers by contravening conduct. To require a claimant to prove which component of his or her loss or damage is referable to the contravening conduct would be to impose limitations on relief which the terms of that subsection do not require.

[69] At the very least, to require that a claimant under s 82(1) of the Act prove which component of his loss or damage is referable to contravening conduct would be to confine recoverable loss to that directly resulting from that conduct, and, thus, to impose a gloss on the words of the subsection. At the other extreme, it would be to deny any remedy at all in those cases where loss results from two or more acts or events but the claimant is unable to identify the precise component or components of the loss referable to contravening conduct. That consequence is inconsistent with the concept of causation upon which s 82(1) is predicated, namely, that the contravening conduct should only have materially contributed to the loss or damage suffered.

[70] It follows that, under s 82(1) of the Act, it is for the person whose contravening conduct materially contributed to the loss or damage to establish what component of that loss or damage is referable to some act or event other than his or her contravening conduct and not for the person who suffers loss or damage to establish the precise component or components referable to that conduct."

[548]

"If a party is entitled to refuse an Offer of Compromise because the adjudication process will involve the resolution of difficult questions of fact and/or law there is no obligation on the party in very many cases to accept an Offer of Compromise prior to judgment and, conversely, a party making the Offer is not advantaged if ultimately its prognostication of the litigation proves to be correct. In my opinion this cannot be so. If it is it takes away from the utility of making an offer and, accordingly, the general philosophy of a Court, seeking where possible and once again acting judicially to promote settlement, is defeated. All of this has to be looked at in the context of the present approach to legal proceedings where procedures are being taken such as early neutral evaluation of cases and alternative dispute resolution to seek to bring about a compromise prior to the hearing. This is the climate in which the courts are now operating: Pt 7B of the Supreme Court Act 1970. Further, judges frequently suggest to parties, (and I do not suggest this is a recent occurrence), that serious consideration should be given to settlement. This is often couched in terms that ultimate factual findings will depend upon the view taken of the witnesses and their evidence and, in some cases, that the law is uncertain. It is frequently pointed out by the court that settlement will achieve certainty of result. However, it seems to me that there is little point in the court making such remarks to the parties if a party, which has adopted a procedure to try and bring about a settlement and thereby eradicate those doubts and difficulties, derives no benefit from making a sensible commercial offer, which if accepted would have concluded the litigation, because the court denies it that benefit.

The question, so it seems to me, when one is considering a case where an Offer of Compromise has been made and the party rejecting the offer has not achieved a better result than that provided for by it, is not whether it was reasonable for the party rejecting the offer to fight on notwithstanding that the offer had been made, but whether it was reasonable for the party rejecting the offer to do so and, in that regard, I would suggest that the onus must be on the party rejecting the offer to establish in some way the reasonableness of the course it took. In my opinion that cannot be done by saying that litigation is uncertain and it was entitled, rather than accept the offer, to have the uncertainties, whether legal or factual, resolved by judicial decision. That, of course, is an entitlement any litigant has; but what must be understood is that if the litigant has received an offer, which it does not ultimately better, its desire for a judicial determination should, generally speaking, be made subject to its paying the other party's costs on an indemnity basis from the date the offer is made. It is the very uncertainly of the legal and factual issues propounded for decision, which makes settlement an appropriate course, a matter much stressed in suggesting that settlement be considered. If there is no uncertainty, if that can ever be so, there is no reason to settle. It also seems to me that the more difficult and complicated the legal and factual issues the greater must be the uncertainty and, accordingly, the greater must be the incentive to settle on a commercial basis. The greater the uncertainty the more that is being risked and the more the prospect of further litigation by way of appeals."

[574]

"We received a letter dated 11 February 1997 from Warwick Entertainment Centre and signed by Norm Carey which terminated our lease. In a letter dated 1 March 1997 Warwick Entertainment Centre demanded the sum of $617,581.08. Since receiving this letter in March 1997 we have been in a continual legal wrangle with Westpoint and other defendants.

Our legal expenses have been an enormous strain both physically and emotionally. Egon and I work 6 or 7 days a week all year round, with no finance or opportunity for holidays. Because of the nature of our business weekends and school holidays are our busiest times. This means I have not been in a position to spend time with my sons. My eldest son has moved to Perth for his education - Sorry.

McKERRACHER, MR: There's no rush, Mrs Konig. Take your time?

---For the past 3 years I have had to impose upon my 80-year-old parents to allow him to live with them because we cannot afford other accommodation.

The concern about our escalating bank overdraft is an ever-present worry. There have been many times in the past 6 years that we would have liked to expand and improve upon our present business to increase our income but we have been financially restricted because of the need to pay legal expenses.

We have had designs for tourist accommodation to be built on our property but have not been able to afford to build. We continue to live in a 120-year-old home that needs urgent repairs and maintenance but cannot afford to do so.

We have found the last 6 years since leaving the café very draining. Even though our present business is the only financial option we have at this stage it has meant leaving close friends and immediate family so we can live in Pemberton. Also, due to the hours I need to work to pay our expenses I cannot afford to leave the business to visit my son or family in Perth other than on overnight visits and a 4-hour drive back to start work.

Towards the end of 1999 the strain of constantly having to deal with our legal action started to affect Egon's health. He was very moody and every time communication arrived from our solicitors he became very agitated. He complained of strong stomach pains and I arranged for him to see a local doctor who prescribed ulcer medication.

Until then Egon had assumed most of the responsibility of our legal action but at that time I decided to assume much more responsibility to protect his health. I took over the communications with our solicitor on a day-to-day basis and involved Egon only when necessary." (Mrs Konig, T252-253, 6 November 2002)

[650]

'14 Leaving aside the observations of Owen J in McDonnell at p 9 which may have been prompted by the circumstances of that case, and which I would respectfully suggest should not be seen as stating a general rule, it would appear that the following general propositions emerge in relation to the task of the Judge who determines whether or not a special costs order should be made. If the Judge has been the trial Judge, he or she will be able to draw on experience of the trial, which will be of great assistance in understanding the issues involved, and in appreciating the extent to which, for example, detailed preparation for cross-examination appears to have been necessary, or work appears to have been necessary beyond normal court sitting times to respond to matters arising suddenly during the course of the trial. Whether or not the Judge has been the trial Judge, a perusal of the pleadings, the transcript, and the submissions, together with the materials which may relate to interlocutory applications, will be of great assistance in understanding whether it was necessary for additional work to be done.

15 Whether or not the Judge has been the trial Judge, there may be work done of which the Judge is not aware. For example, there may have been unusually voluminous discovery, which is not reflected in the actual number of documents tendered at trial, or there may have been consultation with potential expert witnesses or research of issues of law which were not in the end reflected in the trial. Such work may not have been unnecessary in the light of what was known at the time, but may have resulted in agreement between the parties or a decision by one or another party to abandon an issue which at first appeared to arise. In those cases, it will be necessary for affidavit material to be placed before the Judge explaining in general terms what work was done and why it was done, and giving some indication of the time occupied by such work. It will, of course, be necessary to establish that, prima facie, costs appear to have been incurred which exceed those allowable under the scale. Whether this material is produced in the form of a computer printout, or a draft bill, or a summary prepared by the practitioner having carriage of the file, does not appear to me to matter. If the step is taken of producing a detailed schedule or a computer printout or the like, the Judge will not examine the material line by line, looking for possible duplication or overlap, or enquiring about the way in which every 10 minutes was spent.'"

At a glance

Court

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Before

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Source

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Judgment (757 paragraphs)

Alpine Holdings Pty Ltd & Ors v Warwick Entertainment Centre Pty Ltd & Ors [2003] WASC 53 (24 March 2003)

Parties

Legislation Cited (8)

Cases Cited (38)