Martin v Rowling - [2004] QSC 286

SUPREME COURT OF QUEENSLAND

CITATION:

Martin v Rowling & Anor [2004] QSC 286

PARTIES:

JULANNE MARY MARTIN
(plaintiff)
v
HELEN ROWLING
(first defendant)
and
SUNCORP METWAY INSURANCE LIMITED (ACN 075 695 966)
(second defendant)

FILE NO/S:

S 3606 of 2000

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court Brisbane

DELIVERED ON:

8 September 2004

DELIVERED AT:

Brisbane

HEARING DATE:

1 September 2004

JUDGE:

Douglas J

ORDER:

That the second defendant pay the plaintiff’s standard basis costs of the proceeding to be assessed on the Supreme Court scale until 11 December 2002;1.

That the plaintiff pay the first and second defendants’ costs, including reserved costs, to be assessed on a standard basis according to the Supreme Court scale from 12 December 2002 up to and including today;2.

I certify that the first and second defendants recover their costs of defending the proceedings with an allowance for both senior and junior counsel.3.

CATCHWORDS:

PROCEDURE – COSTS - DEPARTING FROM THE GENERAL RULE - CONDUCT OF PARTIES - DEMAND, OFFER AND CONSENT – Where the defendant made an offer to settle – Offer refused by the plaintiff – Where the defendant obtained a judgment more favourable than the offer – Whether a costs order pursuant to r 361(2) of the Uniform Civil Procedure Rules 1999 (Qld) is appropriate in the circumstances

Uniform Civil Procedure Rules 1999 (Qld), r. 361

Castro v Hillery [2003] 1 Qd R 651, followed
McChesney v Singh [2004] QCA 217, applied
Morgan v Johnson (1998) 44 NSWLR 578, followed

COUNSEL:

Mr G R Mullins for the plaintiff
Mr S Jensen (solicitor) for the defendants

SOLICITORS:

McInnes Wilson Lawyers for the plaintiff
Jensen McConaghy Solicitors for the defendants

DOUGLAS J: On 9 June 2004 I gave judgment for the plaintiff in this matter for $330,668.39 as damages for negligence. The parties have now made submissions in respect of costs. The defendant made an offer to settle for $450,000 plus costs on 11 December 2002. Having obtained a judgment more favourable than that offer, the defendant seeks an order that it pay the plaintiffs’ costs up to 11 December 2002 and that the plaintiff pay the first and second defendants’ costs, including reserved costs, from 12 December 2002 pursuant to r. 361(2) of the Uniform Civil Procedure Rules. The plaintiff argues that such an order is not appropriate in the circumstances.

The circumstances

The defendant’s offer not having been accepted, the matter proceeded to trial and was due to be heard on 4 August 2003 before McMurdo J. During the opening the plaintiff’s counsel became aware that certain documents that had been subpoenaed from the plaintiff’s former employer, a firm known as Merck Sharp & Dohme (“MSD”), included a significant number that had not been obtained from an earlier non-party disclosure application. The new documents dealt in more detail with allegations about the plaintiff’s performance in her employment by MSD and the reasons why she left that position.

That was already an issue in the…

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.

Continue reading Martin v Rowling

Details

AGLC: Martin v Rowling [2004] QSC 286
Case: [2004] QSC 286
Decision Date: 8 September 2004

CaseChat Overview and Summary

The case of Martin v Rowling involved the plaintiff, Martin, suing the defendants, Rowling and another, for damages related to an alleged breach of contract. The dispute was heard in the Supreme Court of Queensland. The primary contention was whether the court should order costs in a manner that deviated from the general rule, considering the conduct of the parties and the events surrounding a settlement offer made by the defendants.

The court had to determine whether, given that the defendant made an offer to settle, which the plaintiff refused, and subsequently the defendant obtained a judgment more favourable than the offer, it was appropriate to make a costs order pursuant to rule 361(2) of the Uniform Civil Procedure Rules 1999 (Qld). This required an analysis of the procedural conduct of both parties, especially the refusal of the settlement offer and the ultimate outcome of the proceedings.

The court found that the plaintiff's refusal of the settlement offer, which was more favourable than the judgment ultimately obtained, justified a costs order against the plaintiff. The court emphasised that the refusal of a settlement offer could have significant implications for the costs incurred by both parties, and in this instance, the refusal was deemed unreasonable. The court concluded that the plaintiff should bear the costs from a specific date onwards, while the defendants were awarded their costs from that date until the conclusion of the proceedings.

The final orders mandated that the second defendant pay the plaintiff's standard basis costs up to a specified date, and that the plaintiff pay the defendants' costs from that date to the end of the proceedings. Additionally, the court certified that the defendants could recover their costs of defending the proceedings, including the costs of both senior and junior counsel.

Orders

Orders of the court

That the second defendant pay the plaintiff’s standard basis costs of the proceeding to be assessed on the Supreme Court scale until 11 December 2002;1.

That the plaintiff pay the first and second defendants’ costs, including reserved costs, to be assessed on a standard basis according to the Supreme Court scale from 12 December 2002 up to and including today;2.

I certify that the first and second defendants recover their costs of defending the proceedings with an allowance for both senior and junior counsel.3.

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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CITATION:	Martin v Rowling & Anor [2004] QSC 286
PARTIES:	JULANNE MARY MARTIN (plaintiff) v HELEN ROWLING (first defendant) and SUNCORP METWAY INSURANCE LIMITED (ACN 075 695 966) (second defendant)
FILE NO/S:	S 3606 of 2000
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court Brisbane
DELIVERED ON:	8 September 2004
DELIVERED AT:	Brisbane
HEARING DATE:	1 September 2004
JUDGE:	Douglas J
ORDER:	That the second defendant pay the plaintiff’s standard basis costs of the proceeding to be assessed on the Supreme Court scale until 11 December 2002;1. That the plaintiff pay the first and second defendants’ costs, including reserved costs, to be assessed on a standard basis according to the Supreme Court scale from 12 December 2002 up to and including today;2. I certify that the first and second defendants recover their costs of defending the proceedings with an allowance for both senior and junior counsel.3.
CATCHWORDS:	PROCEDURE – COSTS - DEPARTING FROM THE GENERAL RULE - CONDUCT OF PARTIES - DEMAND, OFFER AND CONSENT – Where the defendant made an offer to settle – Offer refused by the plaintiff – Where the defendant obtained a judgment more favourable than the offer – Whether a costs order pursuant to r 361(2) of the Uniform Civil Procedure Rules 1999 (Qld) is appropriate in the circumstances Uniform Civil Procedure Rules 1999 (Qld), r. 361 Castro v Hillery [2003] 1 Qd R 651, followed McChesney v Singh [2004] QCA 217, applied Morgan v Johnson (1998) 44 NSWLR 578, followed
COUNSEL:	Mr G R Mullins for the plaintiff Mr S Jensen (solicitor) for the defendants
SOLICITORS:	McInnes Wilson Lawyers for the plaintiff Jensen McConaghy Solicitors for the defendants