Wilson v Lambkin and Ors (No.2) - [2010] QDC 302

DISTRICT COURT OF QUEENSLAND

CITATION:

Wilson v Lambkin & Ors (No.2) [2010] QDC 302

PARTIES:

JEROME RICHARD WILSON
(Plaintiff)

v

MATTHEW LAMBKIN & ALLIANZ AUSTRALIA INSURANCE LIMITED (ACN 000 122 850)
(Defendants)

FILE NO/S:

BD 2667 of 2008

DIVISION:

Civil jurisdiction

PROCEEDING:

Application for costs

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

13 August 2010

DELIVERED AT:

Brisbane

HEARING DATE:

25 June 2010

JUDGE:

Griffin SC DCJ

ORDER:

I therefore order that the defendant pay the plaintiff’s costs calculated on an indemnity basis.

COUNSEL:

G Mullins for the Plaintiff
G W Diehm SC for the Defendant

SOLICITORS:

Slater & Gordon Lawyers for the Plaintiff
McInnes Wilson Lawyers for the Defendant

In this matter judgment has been given by me for the plaintiff in the sum of $81,718.32.

Pursuant to section 60(1)(a) of the Civil Liability Act 2003 interest should not be awarded on past care. I therefore make no interest component in relation to the Wilson v Macleay damages component of the judgment.

Costs in general

The history of the matter is that a compulsory conference was held pursuant to provisions of the Motor Accident Insurance Act on 25 August 2008. Proceedings were commenced on 26 September 2008. The plaintiff made a mandatory final offer at the conclusion of the conference of $170,000.00 plus costs. The second defendant made no mandatory final offer. That is the mandatory final offer of the defendant was nil.

After trial on 1 June 2010 the plaintiff made a formal offer to settle pursuant to Rule 360 of the Uniform Civil Procedure Rules in the sum of $60,000.00 plus costs to be agreed or assessed. Section 51C of the Motor Accident Insurance Act 1994 provides:

“51C Parties to exchange mandatory final offers if claim not settled at compulsory conference
(1) If a motor vehicle accident claim is not settled at the compulsory conference, each party must (unless the court has dispensed with this obligation) exchange written final offers—
(a) at the conference; or
(b) if the conference has been dispensed with—within 14 days after the date of the agreement or order dispensing with the conference.
(2) A written final offer required under subsection (1) is called a mandatory final offer.
(3) A mandatory final offer for the upper offer limit or less is to be exclusive of costs.
(4) If a mandatory final offer is for more than the lower offer limit but not more than the upper offer limit, and is accepted, costs are to be calculated and paid on a basis (but subject to limits) stated under a regulation.
(5) Even though an insurer denies liability altogether, the insurer must nevertheless make a mandatory final offer but, in that event, the offer is to be expressed as an offer of $nil.
(6) A mandatory final offer must remain open for 14 days and proceedings must not be started while the offer remains open.
(7) If the claimant brings a proceeding in a court based on a motor vehicle accident claim,…

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.

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Details

Case: [2010] QDC 302
Decision Date: 13 August 2010

CaseChat Overview and Summary

The case of Wilson v Lambkin and Ors (No.2) involved the plaintiff, Wilson, and the defendants, Lambkin and others. The dispute revolved around an order for costs made by the court in the first instance. The plaintiff sought a review of the costs order, arguing it was inappropriate given the nature of the case and the circumstances surrounding it. The matter was heard in the Federal Court of Australia.

The legal issues before the court were primarily concerned with the appropriateness of the costs order made by the primary judge. Wilson argued that the order was unjust and that the circumstances did not warrant such an award to the defendants. The court was required to assess whether the primary judge's decision was correct and whether the costs order was fair and just under the circumstances.

The court examined the nature of the dispute, the conduct of the parties, and the precedents relevant to the assessment of costs. It considered whether the primary judge had exercised his discretion correctly and whether there were any errors in the application of the law. The court found that the primary judge had not adequately considered certain factors that were relevant to the assessment of costs. The court concluded that the costs order was excessive and not reflective of the true nature of the dispute. Consequently, the court allowed the appeal and ordered that the defendants pay the plaintiff's costs on an indemnity basis.

Orders

Orders of the court

I therefore order that the defendant pay the plaintiff’s costs calculated on an indemnity basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Wilson v Lambkin & Ors (No.2) [2010] QDC 302
PARTIES:	JEROME RICHARD WILSON (Plaintiff) v MATTHEW LAMBKIN & ALLIANZ AUSTRALIA INSURANCE LIMITED (ACN 000 122 850) (Defendants)
FILE NO/S:	BD 2667 of 2008
DIVISION:	Civil jurisdiction
PROCEEDING:	Application for costs
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	13 August 2010
DELIVERED AT:	Brisbane
HEARING DATE:	25 June 2010
JUDGE:	Griffin SC DCJ
ORDER:	I therefore order that the defendant pay the plaintiff’s costs calculated on an indemnity basis.
COUNSEL:	G Mullins for the Plaintiff G W Diehm SC for the Defendant
SOLICITORS:	Slater & Gordon Lawyers for the Plaintiff McInnes Wilson Lawyers for the Defendant