Evans v Transit Aust P/L

[2001] QCA 574

SUPREME COURT OF QUEENSLAND

CITATION:

Evans v Transit Aust P/L & Anor [2001] QCA 574

PARTIES:

BETTY MAY EVANS
(plaintiff/first respondent)
v
TRANSIT AUSTRALIA PTY LTD ACN 065 794 943
(first defendant/appellant)
SUNCORP GENERAL INSURANCE LTD
ACN 075 695 966
(second defendant/second respondent)

FILE NOS:

Appeal No 3605 of 2000
DC No 78 of 1998

DIVISION:

Court of Appeal

PROCEEDING:

Personal injury – liability only

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON:

Judgment delivered 19 December 2000
Further Order delivered 23 February 2001

DELIVERED AT:

Brisbane

HEARING DATE:

10 November 2000

JUDGES:

Pincus JA, Byrne and Cullinane JJ

Separate reasons for further order of each member of the Court, each concurring as to the orders made

FURTHER ORDER:

(a)  The Second Defendant to pay the Plaintiff's costs of the proceedings at first instance on a solicitor and client basis.
(b)  The Second Defendant to pay the First Defendant its costs of the proceedings at first instance including Third Party proceedings to be assessed.
(c)  The Second Respondent to pay the costs of the appeal of the Appellant and the First Respondent to be assessed.

CATCHWORDS:

COSTS – SOLICITOR AND CLIENT – application for costs of proceedings and application – whether first respondent/ plaintiff can claim solicitor and client costs under s 41(7) Motor Accident Insurance Act 1994 – whether question of construction sufficient to make different order

District Court Rules 1968 (Qld), r 118(1)
Motor Accident Insurance Act 1994 (Qld), s 41(7)
Uniform Civil Procedure Rules (Qld), r 743(b)

COUNSEL:

R J Douglas SC and R A I Myers for the appellant
No appearance for the first respondent
P D McMurdo QC and P V Ambrose for the second respondent

SOLICITORS:

McInnes Wilson for the appellant
No appearance for the first respondent
Quinlan Miller Treston for the second respondent

1. PINCUS JA:  I agree with Cullinane J.

1. BYRNE J:   I agree with Cullinane J.

1. CULLINANE J:   The Court when allowing the appeal of the Appellant/First Defendant indicated the orders for costs which it was disposed to make in respect of the proceedings below and on appeal.

1. The parties were given leave to apply in respect of costs if any wished to contend for different orders.

1. The First Respondent/Plaintiff submits that she should have her costs of the proceedings on an indemnity basis, or alternatively on a solicitor and client basis. (Costs on a solicitor and client basis equate with costs on an indemnity basis. See Rule 743(b) of the Uniform Civil Procedure Rules (Qld). Under the rules, solicitor and client costs are replaced by indemnity costs.)

1. The First Respondent/Plaintiff bases her claim on two alternative grounds. The first is s 41(7) of the Motor Accident Insurance Act (Qld) 1994. This provides as follows:

If—
The insurer denies liability or admits liability to the extent of 10% or less;  and

The insurer’s liability is later established in a proceeding before a court to the extent or 80% or more;

The court must award costs in favour of the claimant on a solicitor-and-client basis unless the insurer establishes good reason why it should not.

1. The second is based upon the District Court Rules (Qld) 1968 and in particular Rule 118 then in force. Rule 118(1) provides as follows:

Where the Plaintiff makes an offer to settle which is not accepted by the Defendant and the Plaintiff obtains a judgment no less favourable than the offer to settle the court shall order the Defendant to pay the Plaintiff’s costs fixed on a solicitor and client basis, unless the Defendant shows that another order for costs is proper in the circumstances.

1. The First Respondent/Plaintiff instituted proceedings in the first instance against the Appellant/First Defendant obtaining leave (by an order of 31^st August 1998) to institute proceedings against the Second Respondent/Second Defendant notwithstanding non-compliance with the requirements of part 4 of the Motor Accident Insurance Act 1994.

1. The consequence of such an order is that the notice of claim which the First Respondent/ Plaintiff forwarded on or about 27^th July 1998 (dated 24^th July 1998) was deemed to be received on the 31^st August 1998.

1. That notice included the following offer at p.20. “I offer to accept the sum of $15,000 (clear of refund to WorkCover). This is a formal offer made pursuant to part 9 of the District Court Rules and is open for a period of 14 days. This is an offer to settle my claim as against Suncorp".

1. The response of the Second Respondent/Second Defendant to the notice of claim of the First Respondent/Plaintiff was to reject liability.

1. As will be seen s 41(7) of the Motor Accident Insurance Act 1994 requires the court to award costs in favour of a claimant on a solicitor and client basis unless the insurer establishes good reason why it should not.

1. The good reason sought to be advanced here is that the case involved questions of construction of the Motor Accident Insurance Act 1994. The resolution of this question determined which insurer was obliged to satisfy the judgment.

1. In my view this cannot provide a sufficient basis for not giving effect to the policy contained in s 41(7). Each insurer sought to have the other fixed with the liability to pay. It was necessary as a result for the Plaintiff to pursue both. The result has been that the Second Respondent has been held responsible.

1. The Plaintiff is, in my view, entitled to receive her costs on a solicitor and client basis under this provision.

1. As the Plaintiff is entitled to succeed on these grounds it is unnecessary to express any view on the second basis advanced which involves a consideration of whether an offer to accept a sum “clear of refund of WorkCover” is sufficiently certain for the purposes of the Rule.

1. The orders for costs then should be:

(a)The Second Defendant to pay the Plaintiff’s costs of the proceedings at first instance on a solicitor and client basis.

(b)The Second Defendant to pay the First Defendant its costs of the proceedings at first instance including Third Party proceedings to be assessed.

(c)The Second Respondent to pay the costs of the appeal of the Appellant and the First Respondent to be assessed.