Reardon-Smith v. Torres-Farr & Anor

[2007] QSC 8

SUPREME COURT OF QUEENSLAND

CITATION:

Reardon-Smith v Torres-Farr & Anor [2007] QSC 008

PARTIES:

DAVID HARRY REARDON-SMITH
(plaintiff)
v
ELMER SEBASTIAN TORRES-FARR
(first defendant)
ALLIANZ AUSTRALIA INSURANCE LIMITED
(ABN 15 000 122 850)
(second defendant)

FILE NO:

BS803 of 2006

DIVISION:

Trial Division

PROCEEDING:

Trial – Further order

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

16 January 2007

DELIVERED AT:

Brisbane

HEARING DATE:

20-21 July 2006

JUDGE:

Byrne J

ORDER:

CATCHWORDS:

PROCEDURE – JUDGMENTS AND ORDERS – INTEREST ON JUDGMENTS – IN GENERAL – where global sum awarded for past and future economic loss – what proportion of damages awarded should be used to calculate interest

PROCEDURE – COSTS – GENERAL RULE - COSTS FOLLOW THE EVENT – COSTS OF WHOLE ACTION – WHERE MONEY PAID INTO COURT OR OFFER OF COMPROMISE MADE – OFFER OF COMPROMISE MADE – where defendants made mandatory final offer under s 51C Motor Accident Insurance Act – where offer exceeded judgment sum – whether plaintiff should pay defendants’ costs from the date of expiry of the offer

PROCEDURE – COSTS – SCALES OF COSTS – SCALE APPLICABLE – where judgment sum well within the jurisdiction of the District Court – whether costs recoverable by the plaintiff should be paid on the District Court scale

COUNSEL:

M Grant-Taylor SC for the plaintiff
K Howe for the first and second defendants

SOLICITORS:

Schultz Toomey O’Brien for the plaintiff
McInnes Wilson for the first and second defendants

Interest

1. There is a contest concerning the proportion of the damages to be used in calculating interest. Both sides, however, have urged that an apportionment be made.[1]

   [1]Cf the reference in State Government Insurance Office (Queensland) v Biemann (1984) 154 CLR 539, 547 to splitting an award to permit an interest award where the judge is able to do so.

1. There can be no pretence to precision in this exercise.

1. Had the plaintiff reached the WQS 192 in 2004, he could have expected to have increased his receipts from prize money and, probably, sponsorship before the trial. And if, by the time of trial, the plaintiff had joined the WCT, again his gross income would have risen by now. Of course, in forming a view about his economic circumstances in such eventualities, outgoings that would necessarily have been incurred in gaining the income have to be brought to account.

1. The state of the evidence, however, does not enable me to make satisfactory findings about the extent to which economic loss would actually have been sustained if the plaintiff had by now joined the WCT.

1. There is no alternative to approaching the matter very broadly, avoiding allowing the interest issue to assume disproportionate importance.[2]

   [2]Fire and All Risks Insurance Co Limited v Callinan (1978) 140 CLR 427, 432-433; Cullen v Trappell (1980) 146 CLR 1, 22.

1. Interest will be allowed on half the judgment sum.

Costs

1. The sum for which judgment is to be entered is less than $90,000.

1. By a mandatory offer made pursuant to s 51C of the Motor Accident Insurance Act1994, on 11 January 2006, the defendants offered to pay $120,000, plus costs. The offer was, as s 51C(6) requires, expressed to be open for 14 days.

1. Section 51C(10) stipulates:

“the court must (where relevant) have regard to the mandatory final offers in making a decision about costs”.

1. The provision applies where, as here, the offer is for more than $50,000:  Monement v Faux [2005] QSC 342, [27].

1. No countervailing consideration has been advanced as something to be taken into account in deciding what order for costs should be made. 

1. In these circumstances, the plaintiff should pay the defendants’ costs from 26 January 2006 to be assessed; and, as indemnity costs are not sought, on the standard basis.

1. The plaintiff should have his costs to and including 25 January 2006.  A question arises as to the scale on which they should be assessed.

1. The amount of the judgment is well within the jurisdiction of the District Court.  The defendants’ submissions sought an order limiting the plaintiff’s costs to those recoverable on the appropriate District Court scale. The plaintiff’s submissions do not take issue with this. 

1. No consideration having been raised against the costs order sought in that respect, the plaintiff’s costs may be recovered to and including 25 January 2006 on the appropriate District Court scale.

1. I will hear submissions with respect to the form of order.