Mason v Battaglia, Spiller and Norco Co-Operative Ltd

[1997] QCA 332

IN THE COURT OF APPEAL

[1997] QCA 332

SUPREME COURT OF QUEENSLAND

Appeal No.3765 of 1996

Brisbane

[Mason v Battaglia]

BETWEEN:

MYRNA A. MASON

(First Defendant) Appellant

AND:

STEFAN BRUNO BATTAGLIA

(Plaintiff) Respondent

AND:

ANDREW JOHN SPILLER

(Second Defendant)

AND:

NORCO CO-OPERATIVE LIMITED

(Third Defendant)

McPherson JA
Dowsett J

Mackenzie J

Judgment delivered 27 June 1997.
Further order delivered 23 September 1997.
Further order of the Court.

ORDER AS TO COSTS SET ASIDE, SUBSTITUTE IN LIEU THEREOF AN ORDER: THAT THE DEFENDANT IS TO PAY THE PLAINTIFF’S COSTS OF THE ACTION FIXED ON A PARTY AND PARTY BASIS UP TO AND INCLUDING 5 APRIL 1994. THE PLAINTIFF IS TO PAY THE DEFENDANT’S COSTS OF THE ACTION FIXED ON A PARTY AND PARTY BASIS AFTER 5 APRIL 1994.

CATCHWORDS:	COSTS - OFFER TO SETTLE - CIRCUMSTANCES IN WHICH ANOTHER COSTS ORDER IS PROPER. SUPREME COURT RULES O.26 r.2.
Counsel:	Mr P.A. Keane Q.C., S-G, for the appellant Mr R.R. Douglas QC, with him, Mr C.G.S.L. Jensen for the respondent
Solicitors:	Clayton Utz for the appellant Rogers Matheson Clark for the respondent
Hearing date:	13 June 1997

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 3765 of 1996

Brisbane

Before McPherson JA

Dowsett J

Mackenzie J

[Mason v Battaglia]

BETWEEN:

MYRNA A. MASON

Appellant

(First Defendant)

AND:

STEFAN BRUNO BATTAGLIA

Respondent

(Plaintiff)

AND:

ANDREW JOHN SPILLER

(Second Defendant)

AND:

NORCO CO-OPERATIVE LIMITED

(Third Defendant)

FURTHER ORDER OF THE COURT

Further order delivered 23 September 1997

On 27 June 1997 the Court delivered its judgment in this matter, allowing the appeal and

varying the award of damages from $676,427.71 to $322,427.71. The appellant had previously made

a formal offer of settlement pursuant to O.26 r.2 in the amount of $648,000 and costs. It is agreed that

for the purposes of O.26 r.9, the effective date of the offer was 5 April 1994. Pursuant to Order 26
Rule 9 (2):-

“Where the defendant makes an offer to settle which is not accepted by the plaintiff and the plaintiff obtains a judgment which is not more favourable to the plaintiff than the offer to settle the Court shall order the defendant to pay the plaintiff’s costs, fixed on a party and party basis, up to and including the day of service of the offer to settle and order the plaintiff to pay the defendant’s costs, fixed on a party and party basis after the day of service of the offer to settle, unless the plaintiff shows that another order for costs is proper in the circumstances.”

The respondent submits that we should not make such an order for costs for two reasons.

Firstly, he submits that at the time of the offer, he was having difficulty in giving coherent instructions to

his solicitors. However, in November, 1990 his next friend had been appointed to take over conduct

of the action. Even if the respondent lacked the capacity to give instructions concerning the offer, it was

his solicitor’s duty to form a view and, if appropriate, and in conjunction with the next friend, proceed

pursuant to s.59 of the Public Trustee Act 1978.

Secondly, the respondent submits that at the date of the offer, the “respondent’s economic loss

claim was far from settled”. His solicitor was still “exploring, through consultants and other third

parties, a number of projects that the plaintiff had been working on at the time of the accident.” The writ

was issued in 1987, and the Statement of Loss and Damage (pursuant to Order 39 Rule 29C) was

delivered in 1992. It is therefore a little difficult to accept this argument at face value. In any event, at

best for the respondent, the argument could only result in a slight deferment of the effective date after

which the respondent should bear the costs of the proceedings. The decision of this Court on appeal

demonstrates that the offer was a very generous one. In the circumstances, we should proceed in

accordance with Order 26.

The order as to the costs of the action made by the learned trial Judge should be set aside. In

lieu thereof, the following order should be made:-

“The defendant is to pay the plaintiff’s costs of the action fixed on a party and party basis up to and including 5 April 1994. The plaintiff is to pay the defendant’s costs of the action fixed on a party and party basis after 5 April 1994.”

We have already disposed of the costs of the appeal.