Smith v Topp

[2003] QSC 91

SUPREME COURT OF QUEENSLAND

CITATION:

Smith v Topp and Anor [2003] QSC 091

PARTIES:

WENDY K SMITH
(plaintiff)
v
JENNY TOPP
(first defendant)
SUNCORP METWAY INSURANCE LTD
ACN 075 695 966
(second defendant)

FILE NO:

S3175 of 2002

DIVISION:

Trial Division

PROCEEDING:

Further Order

DELIVERED ON:

10 April 2003

DELIVERED AT:

Brisbane

HEARING DATE:

22 October 2002

JUDGE:

B W Ambrose J

ORDER:

1. I order that the defendants pay to the plaintiff her costs of the action up to and including 6 March 2002 to be assessed on the appropriate District Court scale on a standard basis.

2. I order that the plaintiff pay to the defendants their costs of and incidental to defending the plaintiff’s action incurred on and subsequent to 7 March 2002 to be assessed on a standard basis for an action successfully defended in the Supreme Court of Queensland. 

CATCHWORDS:

COSTS – Offers to settle – where plaintiff awarded damages below Supreme Court limit – where defendants had made offers to settle greater than damages awarded – whether plaintiff should get costs to date of offer on District or Supreme Court scale of costs – whether defendants should get costs from date of offer on District or Supreme Court scale of costs

Uniform Civil Procedure Rules 1999 (Qld), r 361, r 361(2), r 361(2)(a), r 361(2)(b), r 361(4), r 362, r 698, r 698(1), r 698(3)

COUNSEL:

R J Lynch for the plaintiff
P Hastie for the defendants

SOLICITORS:

McInnes Wilson for the plaintiff

Walsh Halligan Douglas for the defendants

1. AMBROSE J:  On 7 March 2001 the plaintiff commenced proceedings in the District Court of Queensland claiming against the defendants the sum of $250,000 for damages for personal injuries.

1. By consent order made on 5 March 2002 the plaintiff’s action was transferred from the District Court to this Court on the ground that there was reasonable ground for supposing that the relief she sought in her action is not available in the District Court – because her damages may be assessed at a sum in excess of the jurisdiction of that court ($250,000). 

1. On 6 March 2002 the defendants offered to settle the plaintiff’s action in the sum of $145,000 plus costs. 

1. On 14 May 2002 the defendants made a second offer to settle her claim in the sum of $170,000 plus costs.

1. The plaintiff did not accept either offer but proceeded to trial.  On 22 October 2002 the plaintiff recovered judgment against the defendants in the sum of $147,243.28. 

1. The damages assessed amounted to $130,447.61 and the interest assessed on various items of that damage amounted to $16,795.67. 

1. It follows therefore that both offers made by the defendants to settle the plaintiff’s claim were for more than the sum of $130,447.61 assessed as damages. 

1. Under UCPR 361(2) unless the plaintiff can show another order for cost is appropriate in the circumstances I am required –

(a)to order the defendant to pay the plaintiff’s costs on the standard basis up to and including the day of service of the offer to settle; and

(b)order that the plaintiff pay the defendant’s costs calculated on the standard basis after the day of service of the offer to settle.

1. Under UCPR 361(4) if a defendant makes more than one offer the first of those offers is taken to be the only offer to be considered under UCPR 361.  I therefore ignore the offer of $170,000 plus costs made on 14 May 2002.  I consider only the offer of $145,000 plus costs made on 6 March 2002. 

1. Pursuant to UCPR 362(2) I disregard the interest component of the judgment and have regard only to the award of damages in the sum of $130,447.61.  This sum is approximately $14,500 less than the defendants’ offer made on 6 March 2002.  Prima facie therefore the defendant should pay the plaintiff’s costs on the judgment of $147,243.28 calculated on the standard basis up to and including 6 March 2002. 

1. Again prima facie pursuant to UCPR 361(2)(b) the plaintiff should pay the defendants’ costs calculated on the standard basis incurred subsequent to 6 March 2002 – ie from 7 March 2002. 

1. Under UCPR 698(3) prima facie the plaintiff then is entitled to recover costs assessed as if her action had been commenced in the District Court – as indeed it was.

1. I am unpersuaded on the facts of this case that there would be a sufficient justification for exercising a discretion under 698(1) permitting assessment of the plaintiff’s costs otherwise than upon the appropriate District Court scale. 

1. The real issue debated upon this cost question is whether the plaintiff ought to be ordered to pay the defendants’ costs calculated on the standard basis in the Supreme Court or whether I should exercise a discretion given under UCPR 361(2) and order that plaintiff pay to the defendants their costs calculated on the standard basis in the District Court – ie on the standard basis for a claim in the District Court of $250,000. 

1. UCPR 361(2)(b) is silent on this point. 

1. UCPR 698(3) addresses the situation where a plaintiff proceeds in this court to recover damages that might have been recovered in the District Court.  It does not of course on its face deal with the assessment of costs incurred by a defendant in this court who successfully defends an action pursued by a plaintiff within the jurisdiction of this court – albeit that claim might also be within the jurisdiction of the District Court.

1. The discretion therefore given to a court with respect to the assessment of a plaintiff’s costs under UCPR 698(1) seems irrelevant to the exercise of the discretion given in respect of both plaintiff’s costs and defendants’ costs under UCPR 361(2).

1. UCPR 361(2) does not address at all the matters addressed in UCPR 698. 

1. Had it not been for the cost constraint contained in UCPR 698, on the facts of the present case prima facie the plaintiff would recover costs assessed on the basis that her claim was properly brought in the Supreme Court – as indeed would the costs of the defendants be assessed on the basis that they were incurred in the Supreme Court.

1. In my view UCPR 698 has effect only with respect to the quantum of costs the plaintiff may recover under UCPR 361(2)(a).

1. It has no relevance to the assessment of the defendants’ entitlement to costs under UCPR 361(2)(b).

1. In my view prima facie the defendants are entitled to recover from the plaintiff their costs assessed on the basis of an action successfully defended in the Supreme Court within its unlimited jurisdiction.  Clearly this court has jurisdiction to entertain a claim for $250,000.  In my view if a plaintiff pursues in this court an action which may have been pursued in the District Court and fails to recover judgment, prima facie the defendant is entitled to recover against the plaintiff costs assessed as in a Supreme Court action. 

1. At the end of the day it seems to me that the obligations is on the plaintiff to show in the circumstances of this case that “another order for costs is appropriate”.

1. Because the plaintiff under rule 698 is entitled to recover costs only on the District Court scale, is it “appropriate” that in the exercise of discretion I should order that the defendants also recover costs to be assessed only on the appropriate District Court scale. 

1. No authority was cited to support such a proposition.

1. In the circumstances I am unpersuaded that it would be “appropriate” to make such an order.

1. I order therefore that the defendants pay to the plaintiff her costs of the action up to and including 6 March 2002 to be assessed on the appropriate District Court scale on a standard basis.

1. I order that the plaintiff pay to the defendants their costs of and incidental to defending the plaintiff’s action incurred on and subsequent to 7 March 2002 to be assessed on a standard basis for an action successfully defended in the Supreme Court of Queensland.