Domocombe Pty Ltd, Cahill and Guthrie v Hess

[1993] QCA 482

IN THE COURT OF APPEAL	[1993] QCA 482
SUPREME COURT OF QUEENSLAND

Appeal No. 98 of 1993

Before The President
Mr Justice Davies
Justice White

[Domocombe v. Hess]

BETWEEN:

DOMOCOMBE PTY. LTD. and MARY KATHERINE CAHILL and
GREGORY EDWIN GUTHRIE

(Defendants) Appellants

AND:

VICKIE MARREE HESS

(Plaintiff) Respondent

REASONS FOR JUDGMENT - THE COURT

Judgment delivered the Third day of December 1993.

This is an application by the appellants to vary the order of this Court made on 6 September 1993 in the following terms:

"Appeal allowed. The judgment appealed from is set aside. In lieu thereof, it is adjudged that the respondent recover from the appellants $15,681.90. Appellants to pay the respondent's costs of and incidental to the proceedings in the court below to be taxed. Respondent to pay taxed costs of and incidental to this appeal."

First, the appellants submitted that the amount awarded to the respondent should have been $5,600.65. The trial judge awarded the respondent damages of $56,006.76 less the refund due to the Workers' Compensation Board of $16,802.06, resulting in a judgment of $39,204.70 in favour of the respondent. This Court decided that "an appropriate apportionment of liability is 60% to the respondent and 40% to the appellants." It was submitted that this Court should have apportioned the sum of $56,007.76 and then taken into account the refund due to the Workers' Compensation Board. The Court should have done so (Negric v

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Albion Scrap Steel Pty Ltd [1978] Qd R 362), but owing to an oversight, did not do so. Accordingly, the order ought to be varied so that it is adjudged that the respondent recover 40% of $56,006.76, less $16,802.06, i.e., $5,600.75.

Further, the appellants submitted that a consequence of this order is that they are entitled to an order for some of their costs of the proceedings below, pursuant to r.118(2) District Court Rules. On 18 March 1993, more than 14 days before the trial, the appellants served on the respondent an offer to settle, pursuant to the District Court Rules, on the basis of a payment to the respondent of $15,000.00 in addition to benefits already paid by the Workers' Compensation Board and her party and party costs. It was not contended that the appellant was not "at all material times willing and able to carry out his part of what was proposed in the offer." (r.118(5)) In these circumstances, r.118(2) directs the Court to:

"... order the defendant to pay the plaintiff's costs, fixed on a party and party basis, up to and including the day of service of an offer to settle and order the the plaintiff to pay the defendant's costs, fixed on a party and party basis, after the day of service of the offer to settle unless the plaintiff shows that another order for costs is proper in the circumstances."

The respondent submitted that another order for costs, namely the order originally made by the Court, would be proper in the circumstances. She submitted that the circumstances that made it proper to make another order were that the appellant was found responsible for the respondent's loss "to a significant degree" and that she had received Workers' Compensation benefits. Counsel for the respondent referred to no similar case in which

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a court was satisfied that it was proper in the circumstances to make another order. Indeed, the circumstances are no different to many master and servant actions. The respondent's submission should be rejected.

Accordingly, it should be ordered that the order of the Court made on 6 September 1993 be set aside, and in lieu, the following order made:

"Appeal allowed. The judgment appealed from is set aside. In lieu thereof, it is adjudged that the respondent recover from the appellants $5,600.65. Appellants to pay the respondent's taxed costs of and incidental to the proceedings below up to and including 18 March 1993. The respondent to pay the appellants' taxed costs of and incidental to the proceedings below after 18 March 1993 and the taxed costs of and incidental to this appeal."

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 98 of 1993

Brisbane

[Domocombe v. Hess]

BETWEEN:

DOMOCOMBE PTY. LTD. and MARY KATHERINE CAHILL and
GREGORY EDWIN GUTHRIE

(Defendants) Appellants

AND:

VICKIE MARREE HESS

(Plaintiff) Respondent

The President
Mr Justice Davies

Justice White

Judgment delivered 3/12/93

Judgment of the Court

SET ASIDE THE ORDER OF THE COURT MADE ON 6 SEPTEMBER 1993. IN
LIEU, THE FOLLOWING ORDER IS MADE:

APPEAL ALLOWED. THE JUDGMENT APPEALED FROM IS SET ASIDE. IN LIEU THEREOF, IT IS ADJUDGED THAT THE RESPONDENT RECOVER FROM THE APPELLANTS $5,600.65. APPELLANTS TO PAY THE RESPONDENT'S TAXED COSTS OF AND INCIDENTAL TO THE PROCEEDINGS BELOW UP TO AND INCLUDING 18 MARCH 1993. THE RESPONDENT TO PAY THE APPELLANTS' TAXED COSTS OF AND INCIDENTAL TO THE PROCEEDINGS BELOW AFTER

18 MARCH 1993 AND THE TAXED COSTS OF AND INCIDENTAL TO THIS

APPEAL.

Counsel:	Mr A M Warnick for the appellants Mr K J Murphy for the respondent
Solicitors:	Roberts & Kane for the appellants Peter Channell & Associates for the respondent

Hearing date: 2 September 1993