Morris v Baker; Richards v Noveski [1999] ACTSC 130 (10 December 1999)

Last Updated: 12 May 2005

LISA ROCHELLE MORRIS aka LISA ROCHELLE RICHARDS v TIM BAKER

LISA ROCHELLE RICHARDS aka LISA ROCHELLE MORRIS v VESNA NOVESKI

[1999] ACTSC 130 (10 December 1999)

CATCHWORDS

CONTRACT - offer and acceptance - plaintiff's counsel makes oral offer to defendant's counsel to settle matter - offer rejected - settlement discussed again later in the day - differing accounts of discussion - following day defendant purports to accept initial settlement offer - whether there was a settlement agreement - objective test applied - held not established that plaintiff's counsel intended or appeared to revive offer at end of day - no settlement agreement in place.

ABC v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540

No. SC 544 of 1996

Judge: Higgins J

Supreme Court of the ACT

Date: 10 December 1999

IN THE SUPREME COURT OF THE )

) No. SC 544 of 1996

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: LISA ROCHELLE MORRIS aka LISA ROCHELLE RICHARDS

Plaintiff

AND: TIM BAKER

Defendant

IN THE SUPREME COURT OF THE )

) No. SC 840 of 1996

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: LISA ROCHELLE RICHARDS aka LISA ROCHELLE MORRIS

Plaintiff

AND: VESNA NOVESKI

Defendant

ORDER

Judge: Higgins J

Date: 10 December 1999

Place: Canberra

THE COURT ORDERS THAT:

1. The defendant's notices of motion be dismissed.

1. This is yet another unfortunate case involving a dispute between legal practitioners as to whether or not a settlement agreement had been reached in respect of legal proceedings.

2. The facts, including those in contest, are simple enough. On most of them there is no dispute.

3. On 4 July 1996, the plaintiff issued a writ of summons claiming damages for personal injury in a motor vehicle accident (there was another claim in respect of another accident, heard with this, commenced 16 September 1992). The plaintiff claimed that the accidents were caused by the negligence of the respective defendants. She suffered personal injury in each of them.

4. The matter came on for hearing before Master Connolly on 29 June 1999. Mr Ray Mildren of counsel appeared for the plaintiff instructed by Ms Geraldine Blanch of pappas, j.- attorney. Mr Ian Newbrun of counsel appeared for the defendant instructed by Mr Craig Nicholls of Hunt & Hunt, Lawyers.

5. On the day prior to the hearing the defendant had put an offer of $81,000 plus costs to settle both claims. It was expressed to expire at the close of business that day if not accepted sooner. It was not.

6. Before the case commenced, on 29 June 1999, Mr Newbrun and Mr Mildren had a conversation concerning settlement of the matter. There are some minor differences in their recollections of the terms of it.

7. Mr Newbrun's (N) account of it was that Mr Mildren (M) raised the matter as follows.

"M: My client will settle the matters for $100,000 plus costs.

N: I will get instructions."

8. Mr Newbrun and Mr Nicholls then conferred. On Mr Newbrun returning to the court room, Mr Mildren asked:

"Well, what's happening?

N: We can't help you.

M: Well, let's start the matter."

9. Mr Mildren's account was that he first responded to a request by Mr Newbrun to state the plaintiff's attitude to the defendant's last offer.

"M: I thought the way in which the letter had been worded there was no point in responding to that sort of offer.

N: Why don't you get instructions and put a figure to me anyway."

10. Then, after conferring, Mr Mildren returned. He put an offer to settle for $100,000 plus costs. Mr Newbrun withdrew to get instructions. After his return, Mr Mildren spoke to him.

"M: What's happening.

N: Nothing (or words to that effect).

M: Okay, let's run the case."

11. The different reporting of this conversation is, to my mind, of no significance.

12. At the conclusion of it, Mr Newbrun had clearly signified rejection of the plaintiff's offer. That Mr Mildren understood and accepted that is apparent from his announcement:

"...let's run the case (or `start the matter')."

13. There was no indication, nor did Mr Newbrun assert to the contrary, that the defendants were simply awaiting instructions.

14. The matters proceeded throughout the day. The Court adjourned at 4.00pm. The hearing was, for various reasons, adjourned to a date to be fixed. Mr Mildren says that, in his view, the plaintiff had gone well in the witness box that day. He did not have instructions to revive the offer of $100,000 plus costs previously put to and, apparently, rejected by Mr Newbrun.

15. There is a dispute as to the conversation which occurred after the Master adjourned the Court for the day.

16. Mr Newbrun says that, in the court room, he said to Mr Mildren:

"N: I'm glad that I don't have to come back tomorrow.

M: (after some `agreeable comments') Just get your people to pay the $100,000 (or `the money') and we can get out of here."

17. Mr Newbrun then retired to the robing room.

18. Mr Mildren said that his words were:

"M: You should get more money you know."

19. Virtually the only difference in these accounts is whether Mr Mildren said "the money" or "more money".

20. Mr Newbrun agreed that he could not say with any certainty that "the $100,000" was, in terms, referred to.

21. The difference is important. A reference to "the money" would be taken as a reference to the offer already put but rejected. Albeit imprecisely, it is capable of conveying to the reasonable bystander that the earlier offer was being reinstated for the defendant's consideration. The other formulation indicates nothing of the kind. It invites a further offer on behalf of the defendants and nothing more.

22. Although Mr Newbrun's affidavit made no reference to any later conversation, Mr Mildren deposed that there was.

23. He said that after the conversation about "money" he left the courtroom. Mr Newbrun approached him and said:

"N: Ray, I wonder if you could put together a range of figures - the sort of figures you would use in your address. It might help me."

M: Sure."

24. A little time later, Mr Newbrun provided his telephone and facsimile numbers so that Mr Mildren might contact him. Mr Mildren's understanding of that conversation is confirmed by Ms Blanch. She recalls him saying to her:

"Newbrun wants us to put some figures together to help him obtain instructions to make us an offer. I'll look after that while you amend the Statement of Particulars."

25. In oral evidence, Mr Newbrun did not dispute the gist of the conversation Mr Mildren referred to. He readily agreed that he had asked for "a schedule of damages". He did not recall whether he said that he made that request with a view to advising the defendant's insurer to reconsider its attitude to settlement. Clearly, however, even if unstated, it is apparent both counsel expected that those instructing Mr Newbrun would be advised by him to reconsider their position in light of (inter alia) that further information.

26. The following day, the defendant's solicitors faxed a letter to the plaintiff's solicitors purporting to "accept the Plaintiff's settlement offer of $100,000.00 plus costs".

27. Thereafter, Mr Mildren and Mr Newbrun had an exchange of words by telephone. Mr Mildren maintained that he had not made a new offer, Mr Newbrun maintained that he understood the offer of $100,000 had not been withdrawn or had, at least, been renewed.

28. Both parties accept that the test is an objective one - (see ABC v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540).

29. It is clear to me that each counsel has an honest recollection of what was said. Plainly both cannot be right. The difference, in essence, is whether the word "more" was used by Mr Mildren. It is clear to me that Mr Mildren believed that the result of his conversation with Mr Newbrun was that the latter would endeavour to persuade the defendant's insurer to increase the offer of settlement.

30. In my view, it would have been prudent for the defendant's solicitors, before purporting to accept the "offer" put earlier on the preceding day to have asked if, indeed, it was still open. Even if Mr Newbrun's recollection of the post-court conversation had been the more accurate, it would still have been doubtful whether the offer, having been formally rejected, had been revived.

31. Counsel, I am certain, did not expect that an issue would arise as to whether the offer of $100,000 (plus costs) was still open for acceptance at the end of the first day of the hearing.

32. Thus, neither attended specifically to the precise form of words used until, at the earliest, the following day.

33. I am satisfied Mr Mildren did not intend to convey a revived offer. I am not satisfied that his words were at variance with that intention. It is possible, indeed likely, that Mr Newbrun had the view that, having offered to accept $100,000 (plus costs), the plaintiff would adhere to that offer and not seek to increase it. However, I am not persuaded that that expectation resulted from any express statement of Mr Mildren's nor any that would have conveyed the same meaning to an objective bystander.

34. It follows that the defendant's notices of motion are dismissed.

35. I will hear the parties as to costs.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Higgins.

Associate:

Date: 10 December 1999

Counsel for the Plaintiff: Mr G Parker

Solicitor for the Plaintiff: pappas j.- attorney

Counsel for the Defendants: Ms S Dowling

Solicitor for the Defendants: Hunt & Hunt

Date of hearing: 22 October 1999

Date of judgment: 10 December 1999