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  • Unreported Judgment

Geary v REJV Services Pty Ltd

 

[2012] QSC 10

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NO:

Trial Division

PROCEEDING:

Claim

ORIGINATING COURT:

DELIVERED ON:

2 February 2012

DELIVERED AT:

Townsville

HEARING DATE:

Submissions made in writing

JUDGE:

North J

ORDER:

On the question of costs I order:

1.In respect of the judgment against the first defendant, there be no order as to costs;

2.In respect of the judgment against the second, third and fourth defendants:

(a)the second, third and fourth defendants pay the plaintiff's costs of and incidental to the proceedings to be assessed on the standard basis up to and including 1 August 2011; and

(b)the plaintiff pay the second, third and fourth defendants' costs to be assessed on the standard basis from 2 August 2011.

CATCHWORDS:

COSTS - discretionary considerations

PRACTICE & PROCEDURE - mistake or slip in order or certificate

CASES:

Amos v Brisbane City Council [2005] QCA 433

Rose v Terry Hewat Commercial Diving Pty Ltd (SC) (Qld), Demack J, No 115/95, 17 August 1999, unreported, (BC 9907530).

COUNSEL:

A Moon for the plaintiff

G Crow SC for the defendants

SOLICITORS:

Connolly Suthers for the plaintiff

Dibbs Barker for the defendants

[1] On 21 December 2011 judgment was pronounced in favour of the plaintiff against the first defendant in the sum of $367,449.13 and against each of the second, third and fourth defendants in the sum of $380,349.38.  The parties were given leave to make submissions in writing with respect to costs.  These have been made.[1]

[2] On 11 March 2008 the parties participated in compulsory conferences convened pursuant to the Workers' Compensation & Rehabilitation Act 2003 (Qld) (WCRA) (as between the plaintiff and the first defendant) and under the Personal Injuries Proceedings Act 2002 (Qld) ("PIPA") (as between the plaintiff and the second, third and fourth defendants).  The matter failed to resolve at the compulsory conferences and the parties exchanged mandatory final offers: 

1.Plaintiff (as against the first defendant) $725,000 inclusive of the refund;

2.Plaintiff (as against the second, third and fourth defendants) $725,000 plus costs;

3.First Defendant - Nil (clear of the refund of $12,900.25);

4.Second Defendant - $80,000 plus costs;

5.Third Defendant - $1; and

6.Fourth Defendant - Nil.

None of the mandatory final offers were accepted and they lapsed on 25 March 2008.

[3] On 18 July 2011, the defendants served upon the plaintiff a joint formal offer pursuant to Part 5 of Chapter 9 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR).  The offer was for the payment to the plaintiff of $500,000 (inclusive of the refund owing to WorkCover Queensland of $12,900.25) plus the payment by the second, third and fourth defendants of costs.  That offer was not accepted by the plaintiff and lapsed on 1 August 2011, the day before trial.

Costs as between Plaintiff and First Defendant

[4] In the action the plaintiff recovered judgment against the first defendant in a sum less than his mandatory final offer but greater than the first defendant's (the employer's) offer.  In the upshot it is common ground between the parties that by reason of section 316 of the WCRA there should be no order as to costs as between plaintiff and first defendant. 

Costs as between Plaintiff and Second, Third and Fourth Defendants

[5] It is apparent that the plaintiff has recovered damages in excess of the offers made by the defendants at the compulsory conference held under PIPA.  His recovery is less than his mandatory final offer made to those defendants at the conference.  The offer made by the defendants on 18 July 2011 pursuant to the UCPR, which expired on 1 August 2011 the day before the trial commenced, was in a sum greater than the amount recovered by the plaintiff against the defendants. 

[6] Although in the written submissions there was much debate concerning discretionary considerations affecting the issue of costs, the parties agree that the provisions of PIPA do not , in the circumstances, affect the discretionary considerations nor do they affect the operation of the UCPR.  In other words, the UCPR can apply unaffected by provisions of PIPA.[2]

[7] The plaintiff submits that in the circumstances another order for costs is appropriate in the circumstances than that indicated by UCPR 361(2).  On his behalf it is contended that either the second, third and fourth defendant should pay his costs of the entire proceedings on the standard basis or alternatively that they should pay his costs of the proceedings up to and including the day of service of the offer (18 July 2011 and that thereafter there be no order as to costs in favour of the second, third and fourth defendants).   The reasons for this contention include that the offer was made only two weeks before the trial at a time when the plaintiff had prepared for and was focused on the trial.  It is contended that the defence, while putting in issue the nature and extent of a back injury, did not in turn specifically plead that the plaintiff suffered from a pre-existing back condition and that consequently the defendants had not in terms pleaded a case that the plaintiff was suffering from a pre-existing condition likely to give rise to the consequences as found by myself.  The plaintiff also points to the circumstance that there was considerable delay in bringing the action to trial because of issues between the defendants and third party proceedings which were only resolved shortly before trial.  Further, he points to the circumstance that the defendants admitted liability only as late as 21 July 2011 which was after the subject offer had been served.

[8] I have some sympathy for the plaintiff in the circumstance that there was evidently considerable delay in the prosecution of the action occasioned by manoeuvrings between the defendants and third parties.  Further the late admission of liability would no doubt have increased costs and caused extra difficulties for the plaintiff and his legal advisers in the preparation for trial.  In the circumstances of the late admission of liability, the delay and also the ambiguity in the defendant's pleading on the question of the nature and extent of the injury and its effects upon the plaintiff, I am persuaded that another order for costs is appropriate in the particular circumstances.

[9] But I am not persuaded that the costs orders as contended for by the plaintiff should be made.  In my judgment, the plaintiff should be entitled to recover his costs on the standard basis beyond the service of the offer pursuant to UCPR and up until the offer's expiry on 1 August 2011.  Thereafter the second, third and fourth defendants should be entitled to recover their costs on the standard basis from the plaintiff.  This means in effect that the plaintiff's period for cost recovery is extended by fourteen days and the defendants reduced by those fourteen days. 

[10] My reasons for not acceding to the plaintiff's submission is that it overlooks the findings made concerning credit and the circumstance that manifestly the plaintiff's recovery is less than offered, albeit belatedly, by the defendants.

Slip Rule Application

[11] By letter dated 16 January 2012, the solicitors for the defendants drew to my attention paragraph [70] of my Reasons for Judgment raising the issue of whether there was an error in my calculations of past economic loss, their point being that a discounting of 80% ought to have resulted in a substantially reduced award for past economic loss.  I took the defendant's letter to, in effect, questions whether there was a mistake in the judgment requiring a correction pursuant to UCPR 388.[3]

[12] When paragraph [70] is read in context of the reasons at paragraphs [68] to [71], it is apparent that there is no slip or mistake.  Certainly the last sentence is infelicitously worded.  In context, in order to more clearly state my intention, the sentence might have been better expressed by substituting "20%" where "80%" appears or alternatively by substituting the word "to" for the word "by" where it appears immediately before "80%".

Orders

[13] On the question of costs I order:

1.In respect of the judgment against the first defendant, there be no order as to costs;

2.In respect of the judgment against the second, third and fourth defendants:

(a)the second, third and fourth defendants pay the plaintiff's costs of and incidental to the proceedings to be assessed on the standard basis up to and including 1 August 2011; and

(b)the plaintiff pay the second, third and fourth defendants' costs to be assessed on the standard basis from 2 August 2011.

Footnotes

[1] (1) Plaintiff's submissions 18/1/2012.

  (2) Defendants' submissions 18/1/2012.

  (3) Defendants' submissions in reply 23/1/2012.

  (4) Plaintiff's response to submissions in reply 27/1/2012.

[2] See for example Amos v Brisbane City Council [2005] QCA 433 per Muir J at [19] & [20].

[3] In effect raising a similar point to that discussed in "Rose's case"; Rose v Terry Hewat Commercial Diving Pty Ltd (SC) (Qld), Demack J, No 115/95, 17 August 1999, unreported, (BC 9907530).

Close

Editorial Notes

  • Published Case Name:

    Geary v REJV Services Pty Ltd & Ors

  • Shortened Case Name:

    Geary v REJV Services Pty Ltd

  • MNC:

    [2012] QSC 10

  • Court:

    QSC

  • Judge(s):

    North J

  • Date:

    02 Feb 2012

Litigation History

No Litigation History

Appeal Status

No Status