Foran v Tucker

[2008] QDC 331

DISTRICT COURT OF QUEENSLAND

CITATION:	Foran v Tucker & Anor [2008] QDC 331
PARTIES:	SANDRA FORAN
(Applicant) v
SHANE MARK TUCKER
(First Defendant) and
AUSTRALIAN ASSOCIATED MOTOR INSURERS LIMITED (ACN 004 791 744)
(Second Defendant)
FILE NO/S:	BD 1474 of 2006
DIVISION:	Civil
PROCEEDING:	17 July 2008
ORIGINATING  COURT:	District Court Brisbane
DELIVERED ON:	19 November 2008
DELIVERED AT:	Brisbane
HEARING DATE:	10th and 11th June 2008
JUDGE:	O’Sullivan DCJ
ORDER:	Second Defendant pay the plaintiff’s costs of the action to be assessed on an indemnity basis.
CATCHWORDS:	COSTS ORDER; Motor vehicle accident; whiplash; future earning capacity; aged care administrator; nursing studies
COUNSEL:	R Lynch for plaintiff R Dickson for defendants
SOLICITORS:	McInnes Wilson Lawyers for Plaintiff Dillons Solicitors for Defendants

1. On 16 July 2008 judgment was given in favour of the plaintiff in the sum of $93,614.63. Counsel were invited to make Written Submissions concerning the appropriate costs order.

2. It is not in issue that the plaintiff made a formal Offer to Settle on 14 March 2008. This was pursuant to the Uniform Civil Procedure Rules and was for the sum of $60,000 together with costs and outlays on the standard basis.

3. The plaintiff seeks an order that the second defendant pay the plaintiff’s costs of the action to be assessed on an indemnity basis.

4. Counsel for the second defendant submits that the second defendant should not be visited with an order more onerous than standard costs.

5. Rule 360 of the Uniform Civil Procedure Rules is as follows:

(1)

If—

(a)	the plaintiff makes an offer to settle that is not accepted by the defendant and the plaintiff obtains a judgment no less favourable than the offer to settle; and
(b)	the court is satisfied that the plaintiff was at all material times willing and able to carry out what was proposed in the offer;

the court must order the defendant to pay the plaintiff’s costs calculated on the indemnity basis unless the defendant shows another order for costs is appropriate in the circumstances.

1. The plaintiff made a Mandatory Final Offer dated 28 April 2006 for $50,250 plus standard costs and outlays on the District Court Scale to be assessed. The proceeding was issued on 19 May 2006.

2. Both Counsel referred to Fail v Hutton & Anor [2003] QSC 291. At [12] Moynihan SJA said that it is part of the scheme of the Rules to exert pressure on a party to consider an offer made in accordance with the Rules, and referred to Connolly v Skrapulj (Supreme Court of Victoria 434 of 1990 – judgment delivered 2 March 1993, p 9(a)).

3. Moynihan SJA also referred to the Uniform Civil Procedure Rules R 5(1) which identifies the philosophy behind the Rules as to “facilitate the just and expeditious resolution of real issues in civil proceedings at minimum expense.” Further, he noted that there had been a submission made that the plaintiff’s failure to make an early offer but to allow him the cost advantage of a successful post-trial…