Defendants can be assisted to make offers if "Part 12 Particulars" are supplied as early and as fully as possible. Registrars will insist that full particulars be supplied, and undertakings to provide them later will not be accepted in the absence of good reason for the delay. Nevertheless, defendants' offers ought to be made on the basis of the available information, without always waiting for the evidence. Where a plaintiff has complied with the requirements of section 50A of the Motor Accidents Act, and of Practice Note 33, the defendant ought to have sufficient information, in the usual case, to assess the plaintiff's case and make an offer well before the deadline for "Part 12 Particulars".
8 The respondent has submitted that the offer made was not an offer satisfying the requirements of the District Court rules. The respondent pointed to Pt.39A r.25(2), and submitted that the offer purported to negative or limit the respondent's right to costs by limiting costs to $10,000.00. The respondent also submitted that the offer was void for uncertainty because it did not specify whether or not it included the $1,154.50 already paid by the insurer.
9 The respondent also submitted that it was necessary for the Court to further amend the judgment by increasing it to take into account the adjustment since the time of the trial of the amount appropriate for a most extreme case (see Marsland v. Andjelic (1993) 31 NSWLR 162) and also to take into account a necessary re-calculation of future economic loss. In any event, the respondent submitted, the judgment awarded by the Court of Appeal was not ten percent less than the offer, as contemplated by Practice Note 42.
10 In my opinion, it is too late now to raise the matters referred to in the first sentence of the previous paragraph. In my opinion also, the offer was not void for uncertainty.
11 In my opinion, it would have been preferable if the offer of compromise had simply made no reference to costs or else offered party and party costs; and if any offer in relation to costs had been a separate offer, as contemplated by Pt.19A r.2A. However, as a matter of substance and reality, I do not think this particular offer of compromise did purport to negative or limit the operation of Pt.39A r.25(1), because it is unlikely in the extreme that the respondent's costs would have exceeded $10,000.00 within two months of commencement of the proceedings, and there is certainly no evidence to suggest that the costs at that stage would have exceeded that amount.
12 Even if the offer of compromise did contravene Pt.39A r.25(2), and for that reason did not have any effect under Pt.19A or Pt.39A r.25, it would in the circumstances still stand, in my opinion, as a very powerful discretionary factor in relation to costs. Indeed, in the particular circumstances referred to in the previous paragraph, I think it would be appropriate for the Court to exercise its discretion on costs in the same way as if Pt.39A r.25(2) had not been contravened.
13 In my opinion, having regard to the purpose of Pt.39A r.25, as set out in r.25(1), it is appropriate in this case to order that the respondent pay the appellant's costs of the proceedings at first instance from 22nd December 1999. I do not think this is an exceptional case or that this order involves substantial injustice. The reference to ten percent in the Practice Note does not cut down the effect of the rule.
14 As regards the costs of the appeal, the District Court rules do not apply to the Court of Appeal. Even if this had been an appeal from the Supreme Court, the existence of such an offer of compromise would be a discretionary factor to be taken into account on the costs of the appeal: see Fotheringham v. Fotheringham (No.2) (1999) 46 NSWLR 194. In my opinion, the order originally proposed for the costs of the appeal is still appropriate. The appeal sought judgment for the appellant, so the respondent was forced to contest the appeal in order to retain any judgment at all, and the respondent contested the appeal with some success.
15 Turning to the question of refund, an order for refund should have been sought at the hearing of the appeal. Notwithstanding that, I think it is appropriate to order a refund of the difference between the amount paid and the substituted judgment of $93,205.18, that is $21,794.56. Interest has not been sought, and no interest will be ordered. In my opinion, it is not necessary or appropriate to order any refund on account of the costs at first instance or the costs of the appeal, particularly where no refund was sought in the Notice of Appeal or at the hearing of the appeal.
16 Accordingly, the orders I propose are that, in lieu of Order 3 made on 22nd March 2002,
3. Respondent to pay one-half of the appellant's costs of the appeal, and have a suitors fund certificate if otherwise entitled.
4. Set aside costs order below, and in lieu thereof order that appellant pay the respondent's costs of the proceedings below up to and including 21st December 1999 and respondent pay appellant's costs of the proceedings below from and including 22nd December 1999.
5. Order that the respondent refund to the appellant $21,794.56.
17 IPP AJA: I agree with Hodgson JA.