Schaffer v Royal and Sun Alliance Life Assurance Australia Ltd

[2002] QDC 127

DISTRICT COURT OF QUEENSLAND

CITATION:

Schaffer v Royal & Sun Alliance Life Assurance Australia Ltd [2002] QDC 127

PARTIES:

WENDY LEE SCHAFFER
Plaintiff
v
ROYAL & SUN ALLIANCE LIFE ASSURANCE AUSTRALIA LIMITED
ACN 001 698 228

FILE NO/S:

D 4239 of 2000

DIVISION:

Civil jurisdiction

PROCEEDING:

Judgment on costs

ORIGINATING COURT:

Brisbane

DELIVERED ON:

17 May 2002

DELIVERED AT:

Brisbane

HEARING DATE:

15 April 2002

JUDGE:

Judge Forde

ORDER:

1.That the defendant do pay the plaintiff’s costs of and incidental to the action on an indemnity basis to be assessed. 

That the2. There be no order as to costs in relation to the adjournment of the trial on 15^th January 2002 and any costs incidental to that adjournment.  

CATCHWORDS:

COSTS – Uniform Civil Procedure Rules r 360

COUNSEL:

P Hay for the plaintiff
J Sweeney for the defendant

SOLICITORS:

Murphy Schmidt for the plaintiff
Hillhouse Burrough McKeown for the defendant

1. Judgment was given in this action on 10^th day of May 2002.  Liberty to apply was given in relation to the question of costs.  Written submissions have been provided by both parties in this matter and they are marked with the “I” and “II” respectively.

Indemnity Costs

1. An offer to settle was made by the plaintiff on 12^th December 2001 pursuant to Rule 360 of the Uniform Civil Procedure Rules. Rule 360 provides as follows:

“Costs if offer to settle by plaintiff
360 (1)   If  -

(a)the plaintiff makes an offer to settle that is not accepted by the defendant and the plaintiff obtains a judgment no less favourable than the offer to settle; and

(b)the court is satisfied that the plaintiff was at all material times willing and able to carry out what was proposed in the offer;

the court must order the defendant to pay the plaintiff’s costs calculated on the indemnity basis unless the defendant shows another order for costs is appropriate in the circumstances.

(2)If the plaintiff makes more than 1 offer satisfying subrule (1),

the first of those offers is taken to be the only offer for this rule

[subr (2) subst SL 127 of 2000 r 32]”

1. The plaintiff’s counsel submits that the plaintiff has obtained a judgment no less favourable than the offer to settle and was at all material times willing and able to carry out what was proposed in the offer. Those statements are not challenged by the defendant. The defendant’s counsel submits that costs incurred prior to the date of the offer should be on the standard basis and that is the usual order. Rule 360 is in similar terms to the former Order 26 rule 9 of the Supreme Court Rules.  The learned authors Ryan Weld and Lee in “Supreme Court Practice Queensland” observe as follows at:

“Note that, in contrast to Rule 9(2) the entitlement to solicitor and client costs under Rule 9(1) is unqualified so that the plaintiff is entitled to the costs of the whole action on the solicitor and client basis, even though the offer may have been served shortly prior to trial.”

1. There has been no material placed before me to show that another order for costs would be appropriate in the circumstances apart from an order for costs on an indemnity basis to be assessed. 

Reserved Costs

1. The parties appeared before his Honour Judge Noud on 15^th January 2002.  This was to be the first day of the hearing which was listed to take three (3) days.  The plaintiff’s counsel says that defence counsel submitted:

“The trial could take three days.  I don’t think it would take ten days”. 

His Honour directed the parties to go away and discuss the matter including, if necessary, the amendment of the Statement and the Defence and to make further disclosure and then to come back to him for consent orders for the conduct of the matter.  His Honour stated when the parties did return:

“If the question of costs arises I’ll probably reserve them because the matter is probably not going to be done in three days.”

In fact, the trial with submissions took some four days.  One reason for the trial being adjourned was that it was likely that the matter could not be dealt with in three days.  There had been a failure to disclose some documents by the defendant, including the insurance guidelines.  They had not been disclosed as at 15^th January 2002.  They became relevant on the trial.  The defendant also arranged for the plaintiff to undergo further examination by Dr Alcorn on 26^th February 2002 and that resulted in his recent report of 4^th March 2002 which was relied upon by the defendant at trial.

1. Counsel for the defendant made the following submission:

“1.The costs reserved by Judge Noud ought to be the defendant’s costs.

2.On 15 January 2002, before Noud DCJ, the parties commended a trial of the issues raised in the statement of claim.

3.The defendant applied to strike out the claim for debt and damages in the statement of claim filed on 20 October 2000 on the basis that it did not disclose the cause of action raised in McArthur’s case, something it had to do to succeed.  (The statement of claim was defective for the reasons set out in the attached outline; read before Noud DCJ on 15 January 2002).

4.As a result of the defendants application the trial was adjourned.  Had the pleadings been in order, the trial could have proceeded.

5.The plaintiff filed a new statement of claim on 16 January 2002 which “wholly amends and replaces the statement of claim filed herein on 20 October 2000”.

6.The plaintiff should pay the defendants costs thrown away referred to in the order of Noud DCJ of 15 January 2002.

7.It would be quite unjust to make the defendant pay the plaintiff’s costs of the plaintiff getting her case on a proper legal footing.”

1. Amendments were made to the Statement of Claim following the appearance before his Honour Judge Noud.  The Amended Statement of Claim was filed on 16^th January 2002.  In the heading on the document, it is stated:

“This amended statement of claim wholly amends and replaces the statement of claim filed herein on 20^th October 2000”.

The amendments were substantial.  In particular, the allegations about the refusal of the claim and the alleged decisions made by the defendant were fully pleaded.  Particulars were given as to why the defendant acted in breach of contract.  Given the nature of the reasoning in McArthur v Mercantile Mutual Life Insurance Co Ltd (2001) (QCA 317), the amendments were highly desirable.

1. It would be fair to say that the reasons for the adjournment of the trial were as a result of the conduct of both parties in this action.  In the circumstances, I am not disposed to make any order as to the costs reserved on 15 January 2002.   

ORDERS

1.          That the defendant do pay the plaintiff’s costs of and incidental to the action on an indemnity basis to be assessed.

2.          That there be no order as to costs in relation to the adjournment of the trial on 15^th January 2002 and any costs incidental to that adjournment.