SUPREME COURT OF QUEENSLAND
CITATION:
Gibbings-Johns v Corliss (No. 2) [2010] QSC 78
PARTIES:
TERRY EDWARD GIBBINGS-JOHNS
Plaintiff
And
DENNIS BRUCE CORLISS
Defendant
FILE NO/S:
S76 of 2008
DIVISION:
Trial Division
PROCEEDING:
Application
ORIGINATING COURT:
Rockhampton
DELIVERED ON:
12 March 2010
DELIVERED AT:
Supreme Court Rockhampton
HEARING DATE:
2-3 February 2010
JUDGE:
McMeekin J
ORDER:
The defendant pay the plaintiff’s costs to be assessed on the standard basis on the scale appropriate for proceedings in the District Court.
CATCHWORDS:
DAMAGES – PERSONAL INJURIES – PRACTICE – COSTS – where the plaintiff overstated his loss of earning capacity both at conference prior to trial and at trial – where defendant was justified in rejecting plaintiff’s methodology of assessment – where proceedings should have been brought in a District Court – whether costs should be awarded on the standard or indemnity basis
Personal Injuries Proceedings Act 2002 (Qld), s 39, s 40(8)
Lawes v Nominal Defendant [2007] QSC 092
Michael v The Nominal Defendant (Queensland) [1995] QSC 001 (88/2962)
COUNSEL:
G. Crow for the plaintiff
M. Grant-Taylor SC for the defendant
SOLICITORS:
Macrossan & Amiet for the plaintiff
Suthers Lawyers for the defendant
[1] McMeekin J: In this matter I gave judgment in favour of the plaintiff against the defendant in the sum of $196,152. I indicated at the time of delivering my reasons that I would hear from counsel as to costs. I have since received submissions from the parties.
[2] The plaintiff seeks that his costs be paid on the indemnity basis. The defendant concedes costs should follow the event but should be awarded on the standard basis.
[3] The basis for the plaintiff’s application is that prior to litigation being brought the plaintiff offered to settle his claim in the amount of $150,000 plus costs on the District Court scale. That offer was made pursuant to s 39 of the Personal Injuries Proceedings Act 2002 (“the Act”) and was the plaintiff’s “mandatory final offer” within the meaning of subsection 40(8) of the Act.
[4] Subsection 40(8) of the Act relevantly provides that “the court must, if relevant, have regard to the mandatory final offers in making a decision about costs.”
[5] Obviously the plaintiff’s offer was not accepted and the matter went to trial. No other relevant offers of settlement were made by the plaintiff whether pursuant to Uniform Civil Procedure Rules or by way of a Calderbank offer.
[6] At issue is the significance and effect of such an offer. The terms of subsection 40(8) of the Act, and their contradistinction to the express mandatory requirement in the Act that costs be paid on the indemnity basis where offers are exceeded in matters under $50,000, make plain that the mere fact of the judgment exceeding the amount of the offer does not of itself compel the making of an order on the indemnity basis.
[7] Byrne J analysed the analogous provisions of the Motor Accident Insurance Act 1994 (Qld) in Lawes v Nominal Defendant [2007] QSC 092.…
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- Case
- [2010] QSC 78
- Decision Date
CaseChat Overview and Summary
The primary legal issue was whether the plaintiff’s overstatement of his loss of earning capacity warranted awarding costs on an indemnity basis, as opposed to the standard basis. The court needed to determine if the plaintiff's actions were so unreasonable that they warranted indemnity costs, which cover the defendant's actual costs, rather than the lower standard costs which are capped. Additionally, the court examined whether the proceedings should have been brought in the District Court, as the plaintiff's claims did not exceed the jurisdictional limit of that court.
The court concluded that the plaintiff’s actions were indeed unreasonable and that the defendant was justified in rejecting the plaintiff's methodology. However, the court found that the circumstances did not warrant indemnity costs. Instead, the court awarded costs on the standard basis, reflecting the nature of the proceedings which should have been brought in the District Court. The scale of the costs was to be assessed appropriately for proceedings in the District Court.
The court ordered that the defendant pay the plaintiff's costs to be assessed on the standard basis on the scale appropriate for proceedings in the District Court. This decision underscores the importance of accurate assessment of damages and the consequences of overstating loss of earning capacity, while also highlighting the appropriate forum for such claims.
Orders
Orders of the court
The defendant pay the plaintiff’s costs to be assessed on the standard basis on the scale appropriate for proceedings in the District Court.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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