Gibbings-Johns v Corliss (No. 2) - [2010] QSC 78

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.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] QSC 78
Decision Date: 12 March 2010

CaseChat Overview and Summary

In the matter of Gibbings-Johns v Corliss (No. 2), the plaintiff sought damages for personal injuries sustained in a motor vehicle accident. The case was heard in the Supreme Court, where the plaintiff had previously overstated his loss of earning capacity both during a conference before the trial and during the trial itself. The defendant argued that they were justified in rejecting the plaintiff’s methodology for assessing the loss of earning capacity. The court also considered whether the proceedings should have been brought in the District Court rather than the Supreme Court.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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