Wallace v Nominal Defendant - [2005] QDC 23

[2005] QDC 023

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No D79 of 2003

DONNA MAREE WALLACE

Plaintiff

and

NOMINAL DEFENDANT

and

MATTHEW JOHN HODGE

and

DEBRA ANNE ARNOTT

First Defendant

Second Defendant

Third Defendant

SOUTHPORT

..DATE 11/02/2005

ORDER

CATCHWORDS: Whether costs payable by a plaintiff to defendants because of failure to beat their offer of settlement and not yet assessed - may be set off against the judgment and costs they must pay the plaintiff - plaintiff unlikely to be able to pay the defendants' costs once assessed - stay of enforcement of orders against the defendants until their costs entitlement is assessed as agreed - application per order for set-off adjourned.

HIS HONOUR: The Court published reasons dated 27th of January 2005 to the parties following a trial which had occurred in the month before. The parties were offered the opportunity to make submissions to the Court regarding the appropriateness of orders foreshadowed which included that the plaintiff's costs be ordered on the Magistrates Court scale.

That proposal would not have been made had the Court been aware of circumstances bringing in the provisions of section 55F of the Motor Accident Insurance Act 1994, in I must confess to having had no prior experience of that provision, subsection 3(c) of which controls the matter, given that the conditions specified in the opening couple of lines are shown today to apply. Of course, the Court had no inkling what the insurers' mandatory final offer might have been.

Mr O'Sullivan, for the defendants, sought leave to read and file affidavits of his instructing solicitor, one sworn yesterday, one sworn today. Those were made available to Mr Frampton, appearing for the plaintiff today, only minutes before Court. He objected to those affidavits, although conceding that paragraph 2 of the first one which disclosed details of the defendants' mandatory final offer, in accordance with section 51C of the Act, of $50,000 plus regulation costs made on the 22nd of October 2003.

I do not think it was necessary for an affidavit to be prepared to place that offer before the Court. It is concerning that the affidavits came so late to Mr Frampton. I am sympathetic to the position of his client. There is a risk of having to pay the costs of those affidavits, two of them, not just one. They present information which is not really surprising to the Court, as to the delays that will occur in getting the costs which the defendants are entitled to under section 55F(c)(2) assessed. It is not particularly relevant to have details of the estimated costs the defendants, may be adjudged entitled to - which may or may not prove to be close to the mark in the end.

That is the approach I take in any event, given that in the circumstances, I think the Court ought to have the appearance which matters present to the plaintiff, who may have to pay, in mind. Mr O'Sullivan's defence of the material was that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wallace v Nominal Defendant

Details

AGLC: Wallace v Nominal Defendant [2005] QDC 23
Case: [2005] QDC 23
Decision Date: 11/02/2005

CaseChat Overview and Summary

The case of Wallace v Nominal Defendant involved Donna Maree Wallace, the plaintiff, who was pursuing damages against several defendants, including Matthew John Hodge and Debra Anne Arnott, following a motor accident. The court was tasked with determining the appropriate compensation for the plaintiff and the costs incurred by the parties involved. The case was heard in the District Court of Queensland, Civil Jurisdiction, presided over by Judge Robin QC.

The primary legal issues in the case centred around the assessment of costs under the Motor Accident Insurance Act 1994 and the potential set-off of those costs against the judgment awarded to the plaintiff. Specifically, the court needed to decide whether the plaintiff's costs, which she had incurred due to failing to beat the defendants' settlement offer, could be offset against the judgment and costs she was owed by the defendants. Additionally, the court had to consider the likelihood that the plaintiff would be able to pay the defendants' costs once assessed, especially given her apparent lack of substantial resources.

Judge Robin QC determined that the circumstances warranted a set-off of costs against the judgment and costs owed to the plaintiff. However, due to the late filing of affidavits by the defendants' solicitor, which contained details of the defendants' mandatory final offer and the potential costs they might be awarded, the court decided to stay the enforcement of the orders against the defendants until their costs entitlement was assessed. The judge also acknowledged the plaintiff's potential inability to pay the defendants' costs, which influenced the decision to adjourn the application for a set-off order. The court ultimately issued an order that included the assessment of damages, partial payment by the defendants, and a stay on enforcing the orders until the defendants' costs were finalized.

The final orders included a judgment for the plaintiff against the defendants, with damages assessed at $42,190.15, including prepaid rehabilitation expenses. The defendants were ordered to pay $39,850.35 on account of the judgment, along with the plaintiff's standard costs up to the date of the proceedings, capped at $2,500. The plaintiff was required to pay the defendants' standard costs of the proceedings, excluding those related to the affidavits filed by the defendants' solicitor. The enforcement of the defendants' payment order was stayed until the plaintiff's costs to the defendants were finally assessed or agreed upon. The application for an order allowing the set-off of the defendants' costs against the sums owed to the plaintiff was adjourned to a later date.

Orders