Bailey v Albion and Suncorp Metway Insurance Ltd

[2006] QDC 34

[2006] QDC 034

DISTRICT COURT
CIVIL JURISDICTION

JUDGE ROBIN QC

No BD2152 of 2005

BERNADETTE BAILEY	Plaintiff
and
COLIN HUGH ALBION	First Defendant
and
SUNCORP METWAY INSURANCE LIMITED	Second Defendant

BRISBANE
..DATE 03/02/2006
03022006 T26/IRK13 M/T CMS11/2006 (Robin DCJ)

1

HIS HONOUR: This is an application which has come on as a
special in which the plaintiff seeks leave under Rule 355(3)
to withdraw an offer to settle. The Court may, at any time
within which an offer to settle is open for acceptance, give

leave to withdraw.	10
There was an error in the offer as compared with the
instructions which the plaintiff's solicitor had. She may be
disadvantaged if the offer is accepted and, therefore, it
seems to me appropriate for the Court to make the order. The	20
solicitor's researches have unearthed a decision of Judge
Dodds, Simpson v Coastal Enterprises Pty Ltd [2005] QDC 015,
in which his Honour refused the application for leave to
withdraw because of the lack of promptness in the making of
it. That is not a problem here. The offer was made only this	30
week.
His Honour referred to a useful decision of Wood J in the
Supreme Court of New South Wales in an unreported case of
Rosniak v GIO, 4th of October 1990, a passage from which is	40
set out in annotations to Rule 355 which Mr Mould has
supplied. That passage indicates the circumstances which may
be appropriate for granting of the relief. It seems to me
patent that a mistake of the kind deposed to by Mr Mould is
plainly one. The application is ex parte and of its very	50
nature it is inappropriate to require notice of it to be given
to the second defendant.
03022006 T26/IRK13 M/T CMS11/2006 (Robin DCJ)
After preparing his material, Mr Mould became concerned that	1
he had revealed too much of the substance of his offer, particularly from the point of view of a Judge inadvertently learning of it. The Court has done what it can since he is away from his office to assist, in producing a couple of

10

replacement pages which contain an adequate but not an
excessive description of the offer sought to be withdrawn. In
the interests of keeping things confidential, which can
properly be so kept, the order will provide that Mr Mould's

affidavit, which also contains pertinent information, and the

20

exhibit, be sealed up - not to be opened without a Judge's
order.

The last of Mr Mould's concerns is that the time of the making of the order which was 4.55 p.m. be noted on the draft order.

30

I have noted it next to my signature. He was fearful that the precise hours of the day at which things happened might become significant. It may be that he has no cause for concern and that the Court's order, once made today, is taken as effective for the whole of the 24 hour period which, of course, means

40

under that rule that it may have a retrospective effect
measured in hours. One could not be confident about that,
given that rule 355(3) provides for acceptance of the offer

until an application like the present one is "decided".

50

There will be an order in terms of the initialled draft. I
will return to Mr Mould the outline of argument document
03022006 T26/IRK13 M/T CMS11/2006 (Robin DCJ)

which he supplied because its being on the file may reveal	1
information appropriately kept confidential.

-----

10

20

30

40

50