Foran v Tucker
[2008] QDC 331
•19/11/2008
DISTRICT COURT OF QUEENSLAND
CITATION: Foran v Tucker & Anor [2008] QDC 331 PARTIES: SANDRA FORAN (Applicant)
vSHANE MARK TUCKER (First Defendant)
andAUSTRALIAN 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 studiesCOUNSEL: R Lynch for plaintiff
R Dickson for defendantsSOLICITORS: McInnes Wilson Lawyers for Plaintiff
Dillons Solicitors for Defendants
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.
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.
The plaintiff seeks an order that the second defendant pay the plaintiff’s costs of the action to be assessed on an indemnity basis.
Counsel for the second defendant submits that the second defendant should not be visited with an order more onerous than standard costs.
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.
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.
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)).
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 offer “defeated that philosophy.” He considered that this did not amount to a sufficient reason for the purposes of “another order” as required to be shown.
Both Counsel referred to Jackson Nominees Pty Ltd v Pioneer Building Products (Qld) Pty Ltd [2005] QDC 230. At [9], the court referred to the submission before it that timing of the Offer alone is not particularly relevant to a consideration of the issue of the appropriate costs Order. At [13], the court said:
“While this indulgence to a party at such a late stage in the
proceeding might seem to be over-generous, the combination of Rules 354(1)(b) and 360 of UCPR clearly allow for it and the offerree has a steep hurdle to overcome to avoid an order for indemnity costs for the whole proceeding being made in favour of the offeror if the offer rule satisfies Rule 360(1)(a).”
So far as timing of an Offer is concerned, Counsel for the second defendant referred to Duffy v Hupron Pty Ltd [2007] QSC 106 at [12] and [13]. Chesterman J in that case noted that the offer was made quite late, 18 months after the proceedings had commenced and only a month before trial. He noted at [13]:
“A plaintiff who wishes to take advantage of the generosity of UCPR 360 should make an offer as promptly as is reasonable in the circumstances. There is, I think, an element of unfairness envisiting on the defendant the entire costs of an action on the indemnity basis where an offer is made on the eve of trial and the offer subsequently turns out to have been a good one. In my opinion, depending, of course, on the circumstances of each case, justice would be better served by ordering indemnity costs only from the date of the offer.”
Counsel for the plaintiff referred to McChesney v Singh & Ors [2004] QCA 217, a decision of the Court of Appeal of Queensland in which the court referred to a number of other authorities, including the New South Wales Court of Appeal decision of Morgan v Johnson (1998) 44 NSWLR 578 and in particular the principles set out at [13]. Counsel for the plaintiff has incorporated these principles in his Written Submissions, in particular, the principle that the mere fact that it was reasonable for the litigant to take the view that what he or she did in rejecting the offer is not enough to displace the prima facie rule emerged from that case.
Counsel for the plaintiff noted that these same principles were considered, adopted and applied by Her Honour Lyons J in Hughes v Grogan & Anor [2007] QSC 78. At [17] of that decision, the court asked the question: Was there a change in circumstances or evidence after the Offer which might cast the offer in a different light and make another order appropriate? The court in Hughes referred to Ibbs v Woodrow QBE [2002] QCA 298, and held that new information which had been forthcoming was in no way unusual or unpredictable.
Counsel for the plaintiff submits at [12] of his Written Submissions that all expert medical evidence had been gathered well before the Offer was made. The only new fact which could be complained of, namely the incurring of additional physiotherapy expenses, was in the end result inconsequential as it formed no part of the judgment sum.
Applying the test outlined in Hughes (supra), there was no change in circumstances or evidence after the Offer which makes ‘another Order’ appropriate.
Counsel for the second defendant referred to Davies v Fay [1990] 1 Qd R 509, which supports the principle that solicitor and client costs should only be amended after the date of the Offer. Mackenzie J said that the onus lies on the defendant to establish that there should be some Order other than solicitor and client costs:
“In my opinion, it is appropriate that any order for costs on a solicitor and client basis on the issue of liability should date only from that date in view of the fact that the final resolution of the matter depended heavily upon the acceptance of one view of the evidence over the other.” (p 510)
In Mitchell v Pacific Dawn Pty Ltd [2003] QSC 179, the court held that on the proper application of UCPR 360 it was required, unless good reason is shown by the defendant to the contrary, to order that the defendant pay to the plaintiff his costs of and incidental to the proceedings conducted pursuant to the order made by consent…to be assessed on an indemnity basis. At [30], the court acknowledged that there needed to be a determination of facts in dispute in which the assessment of the credibility of the witness [a director of the defendant and its architect] was critical. The court acknowledged, citing Davies (supra), that a different order as to costs may be made if it is “appropriate”.
Counsel for the second defendant submits that the approach of Mackenzie J in Davies (supra) should be followed. He submitted that the central question in the trial was the effect of injuries upon the work and non-work existence of the plaintiff, about which there were different expert views. I consider there is nothing unusual about this and it does not warrant a different costs order.
At trial, Counsel for the plaintiff submitted that the appropriate award for past gratuitous care was $14,560 and for future paid/gratuitous care between $15,000 and $30,000. Counsel for the second defendant submitted that the appropriate award for past care was nothing and for future care was similarly nothing. In my judgment, I awarded nil for past gratuitous care and $10,920 for future paid care.
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Counsel for the second defendant submitted that there were “extravagant” claims for Loss and Damage. The updated Statement of Loss and Damage was dated 23 May 2008 and included $15,528 for past care and $65,586 for future care.
The claim filed on 19 May 2006 claimed past gratuitous care of $7,800 and nil for future care.
Counsel for the second defendant referred to Crockford v Allianz Insurance Ltd & Anor [2005] QDC 215. In that case, indemnity costs were awarded only after the offer. At [10], the court noted that “settlement of a proceeding by acceptance of an Offer is more likely to occur if the opposing party has all the information which the pre-trial processes provided for are designed to expose.”
Counsel for the second defendant noted that information concerning employment was not included in the Statement of Loss and Damage.
He further noted that there was non-compliance with the Motor Accident Insurance Act and the Uniform Civil Procedure Rules.
In Lawes v Nominal Defendant [2007] QSC 103, Byrne J cited Monement v Faux & Anor [2005] QSC 342 at [27]. This refers to the need for full disclosure before the Mandatory Final Offers. Byrne J said:
“Among the pertinent considerations is whether it appears that the
parties sought to be made liable for costs on an indemnity basis has
imprudently or unreasonably failed to accept a Calderbank offer of
compromise.” (page 6)Byrne J also referred to the need to look at the Mandatory Final Offer, and to form a view of the relative strengths and weaknesses of the case that ought to be apparent to the parties when the Offer was made. He noted there had been no attempt by the plaintiff to demonstrate that the Nominal Defendant’s decision to decline the plaintiff’s Final Mandatory Offer was unreasonable, and he refused the application for indemnity costs.
Applying this test, I consider that at the time the Offer was made, the case had been sufficiently disclosed to enable the second defendant to form a view of the strengths and weaknesses of its case.
I note that Exhibits 5, 6, 9, 10, 11 (p 106), 12 (pp 112 & 113) and 13 relate to 2007 which is after the Offer.
I consider that the second defendant has failed to discharge its onus of proving that “another order for costs is appropriate in the circumstances,” pursuant to R 360. I order the second defendant to pay the plaintiff’s costs of the action to be assessed on an indemnity basis.
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