Devitt v Nominal Defendant

[2006] QSC 169

SUPREME COURT OF QUEENSLAND

CITATION:

Devitt v Nominal Defendant [2006] QSC 169

PARTIES:

LEIGH WILLIAM DEVITT
(plaintiff)
v
NOMINAL DEFENDANT
(defendant)

FILE NO/S:

SC No 2625 of 2004

DIVISION:

Trial Division

PROCEEDING:

Claim – Further Order

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

Judgment delivered 21 June 2006
Further Order delivered 7 July 2006

DELIVERED AT:

Brisbane

HEARING DATE:

13 June 2006; 14 June 2006

JUDGE:

de Jersey CJ

ORDER:

that the defendant pay the plaintiff’s costs of the proceeding, to be assessed on the standard basis, up to and including 14 June 2005, and that those costs be assessed on the District Court scale where the sum recovered exceeds $50,0001.    

that the plaintiff pay the defendant’s costs of the proceeding, to be assessed on the standard basis, incurred thereafter, those costs to be assessed on the Supreme Court scale2.    

CATCHWORDS:

Motor Accident Insurance Act 1994 (Qld), s 51C
Uniform Civil Procedure Rules 1999 (Qld), r 361

Griffiths v Kerkemeyer (1977) 139 CLR 161

COUNSEL:

J R Webb for the plaintiff
K F Holyoak for the defendant

SOLICITORS:

Robbins Watson for the plaintiff
Corrs Chambers Westgarth for the defendant

1. On 21 June 2006 I gave judgment for the plaintiff against the defendant in the sum of $80,206.78.  I then reserved costs.  I have since received comprehensive written submissions in relation to costs.

1. The circumstances principally relevant to the disposition of costs are these, together with my observations:

1. (a) On 13 February 2004, the defendant made its “mandatory final offer”, under s 51C of the Motor Accident Insurance Act 1994 (Qld), which was to pay $75,000 plus costs. The plaintiff did not accept that offer.

(b)         An affidavit by S R Robinson, filed 28 June 2006, contains a calculation to demonstrate that had that offer then been accepted, certain special damages, part of the Griffiths v Kerkemeyer component, and some interest, which found their way into the award made in the later judgment, would not have subsequently accrued.  Subtracting those amounts from the amount of the judgment, the deponent has calculated that the mandatory final offer was $103.14 more than the reduced amount of the judgment. 

(c)         The plaintiff submits that only interest of $1,403.94 should be deducted, leaving a “judgment” for $78,802.84, which exceeds the amount offered.

(d)        Having regard especially to the plaintiff’s submissions in response, dated 30 June 2006, I am not satisfied the judgment should be notionally “wound back” to the extent contended for by the defendant.  In other words, I am not persuaded that if judgment had been given on 13 February 2004, its amount would have been $75,000 or less.

2. (a) On 14 June 2005, the defendant made an offer, under pt 5 of ch 9 of the Uniform Civil Procedure Rules, to pay $140,000 plus costs to date (on the higher District Court scale). The plaintiff did not accept that offer. Because of R 361, I must therefore order the defendant to pay the plaintiff’s standard costs to service of the order, and that the plaintiff pay the defendant’s standard costs thereafter, unless the plaintiff shows that another costs order is appropriate.

(b)         The plaintiff, seeking an order that the defendant pay all his costs, relies on what is said to be an unusual feature, being the interaction between his pre-existing condition, his accident injuries, and his eye condition.  I do not consider that feature sufficient to warrant departure from the approach provided for by the Rule.

3.          (a)         Finally, on 8 June 2006, the defendant communicated a “Calderbank” type offer, open for one day, to pay $210,000 plus Supreme Court costs.  That was not accepted.  The defendant submits that the plaintiff’s failure to accept that offer was unreasonable, so that the plaintiff should be ordered to pay indemnity costs. 

(b)        The offer was made late in the day, on the Thursday preceding the trial commencing on the following Monday.  I appreciate it was rejected the same day, which may imply the plaintiff did not need further time to consider it.  But at that stage, the plaintiff would have been occupied substantially in preparation for what emerged as a factually difficult trial.  The earlier communication of that offer could have led to more measured assessment.

1. Taking account of all these considerations, I believe these are the appropriate orders, and I make them:

1.          that the defendant pay the plaintiff’s costs of the proceeding, to be assessed on the standard basis, up to and including 14 June 2005, and that those costs be assessed on the District Court scale where the sum recovered exceeds $50,000;

2.          that the plaintiff pay the defendant’s costs of the proceeding, to be assessed on the standard basis, incurred thereafter, those costs to be assessed on the Supreme Court scale. 

(The appropriateness of assessment on those respective scales was rightly conceded by the plaintiff.)