Swindells v Hosking & Anor (No 2)

DISTRICT COURT OF QUEENSLAND

CITATION:

Swindells v Hosking & Anor (No 2) [2012] QDC 17

PARTIES:

NORMAN LEE SWINDELLS
(Plaintiff)

v

PHILLIP HOSKING AND KRISTEN HOSKING
(Defendants)

FILE NO/S:

D 189/10

DIVISION:

Civil

PROCEEDING:

Claim

ORIGINATING COURT:

Maroochydore

DELIVERED ON:

22 February 2012

DELIVERED AT:

Maroochydore

HEARING DATE:

On the papers

JUDGE:

Dorney QC, DCJ

ORDERS:

The plaintiff pay the defendants’ costs of the proceeding to be assessed on the standard basis.

CATCHWORDS:

Costs – Where plaintiff unsuccessful – Whether Personal Injuries Proceedings Act 2002 (Qld), though inapplicable, is “relevant” – Where defendants self-represented

Personal Injuries Proceedings Act 2002 (Qld) s 13(3), s 39,
s 40, s 40(3), s 40(5), s 40(6), s 40(7), s 40(8), s 45(3), s 48,
s 56, s 56(1), s 56(2), s 56(7)

Personal Injuries Proceedings Regulation 2002 (Qld) s 13(3)

Uniform Civil Procedure Rules 1999 (Qld) r 680, r 681(1),
r 681(2)

Amos v Brisbane City Council [2006] 1 Qd R 300

Cachia v Hanes (1995) 179 CLR 403

CAR & Anor v Department of Child Safety [2010] QCA 49

Henderson v Taylor, Information Commissioner for Queensland [2006] QCA 267

Oshlack v Richmond River Council (1998) 192 CLR 72

Swindells v Hosking and Anor [2012] QDC 6

COUNSEL:

T Nielsen for the plaintiff

P and K Hosking (self-represented)

SOLICITORS:

Schultz Toomey O’Brien for the plaintiff

Introduction

1. On 31 January 2012, amongst other orders I made in this proceeding, I ordered both that the defendants have judgment against the plaintiff and that both parties have leave to file, and serve, written submissions on costs “on or before 4 pm on 7 February 2012”. 

1. The defendants duly filed their written submissions on costs on 7 February 2012.  Belatedly, the plaintiff filed his written submission on 17 February 2012. Despite the latter’s significant lateness, I will take account of the submissions so made by the plaintiff.

1. Although the plaintiff has asserted that he does not know whether the defendant filed a sealed envelope containing a copy of the defendant’s mandatory final offer, the Court file contained a sealed envelope filed 5 December 2011 containing both the “Final Offer to Settle” of the plaintiff, dated 8 July 2010 and pursuant to s 39 of the Personal Injuries Proceedings Act 2002 (“PIPA”) for the sum of $80,000.00, plus stated costs orders, and the defendants’ “mandatory final offer”, also dated 8 July 2010. Although the defendants’ mandatory final offer makes no reference to s 39 of PIPA, it does refer expressly to that Act, offering the sum of $0.00. 

Legislation

1. Beginning with s 40 of PIPA, s 40(5) states that, if the claimant starts a proceeding in a court based on the claim, the claimant must, at the start of the proceeding, file at the court a sealed envelope containing a copy of the claimant’s mandatory final offer. As noted, that did not occur until the offers were filed on 5 December 2011. Returning, then, to s 40(6), it states that that the respondent must, before…