Nicholls v Telstra Corporation Limited
[2008] QDC 13
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- Unreported Judgment
- Nicholls v Telstra Corporation Limited[2008] QDC 13
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Nicholls v Telstra Corporation Limited[2008] QDC 13
Nicholls v Telstra Corporation Limited[2008] QDC 13
DISTRICT COURT OF QUEENSLAND
CITATION: | Nicholls v Telstra Corporation Limited & Anor [2008] QDC 13 |
PARTIES: | JENNIFER ANNE NICHOLLS Plaintiff AND TELSTRA CORPORATION LIMITED First Defendant AND BRISBANE CITY COUNCIL Second Defendant |
FILE NO/S: | BD67/05; BD4518/04 |
DIVISION: | Civil |
PROCEEDING: | Application for costs. |
ORIGINATING COURT: | District Court |
DELIVERED ON: | 15 February 2008 |
DELIVERED AT: | Brisbane |
HEARING DATE: | Parties submitted written submissions. |
JUDGE: | Tutt DCJ |
ORDER: |
|
CATCHWORDS: | Personal Injury Proceedings Act 2002 ss 39, 40(8). Uniform Civil Procedure Rules 1999 ch 9 pt 5; rs 353, 360, 363. Mandatory final offers under Personal Injury Proceedings Act 2002; Formal offers to settle under Uniform Civil Procedure Rules 1999 and their relationship to each other. Multicon Engineering Pty Limited v Federal Airports Corporation (1996) 138 ALR 425 at 451. John S. Hayes & Associate Pty Limited v Kimberly-Clark Australia Pty Limited (1994) 52 FCR at 240. Leichhardt Municipal Council v Green [2004] NSWCA 341 Charter Pacific Corporation Ltd v Belrida Enterprises Pty Ltd & Ors [2002] QSC 319 |
COUNSEL: | Mr T Matthews for the plaintiff Mr R A I Myers for the first defendant Mr A M Musgrave for the second defendant |
SOLICITORS: | Bennett & Philp for the plaintiff Deacons for the first defendant King & Co for the second defendant |
Introduction:
- [1]Judgment was delivered in this proceeding on 19 December 2007 with the parties to be heard further on the question of costs.
- [2]Written submissions have since been received from all parties together with responses and replies where appropriate.
- [3]A chronology of the offers to settle served by the respective parties to this proceeding both pursuant to the Personal Injuries Proceeding Act 2002 (“PIPA”) and the Uniform Civil Procedure Rules 1999 (“UCPR”) is as follows:
Mandatory Final Offers under PIPA:
Date | Party | Offer |
26.08.05 | Plaintiff | $60,000.00 plus standard costs (filed 17.9.05) |
26.08.05 | First Defendant | Nil |
26.08.05 | Second Defendant | Nil |
Formal Offers under UCPR:
Date | Party | Offer |
06.12.05 | Plaintiff | $60,000.00 plus standard costs |
15.03.06 | First Defendant | $40,000.00 plus $2,500 costs |
09.06.06 | First Defendant | $40,000.00 plus $2,500 costs |
22.09.06 | Plaintiff | $60,000.00 plus standard costs |
14.12.06 | Plaintiff | $50,001.00 plus standard costs |
- [4]Mandatory final offers were made by the respective parties pursuant to s 39 of PIPA at the time of the compulsory conference between the parties held pursuant to ss 36‑38 of PIPA.
- [5]Section 40(8) of PIPA provides that:
“(8) However, the court must, if relevant, have regard to the mandatory final offers in making a decision about costs.”
- [6]In the exercise of a court’s discretion when considering the question of costs under the UCPR in any subsequent proceeding which comes before it, following the pre-court procedures under PIPA, it is therefore necessary for the court to “…have regard to the mandatory final offers…” made by the parties in those pre-court procedures, to the extent they may be “relevant”.
- [7]In the instant proceeding the plaintiff’s claim did not settle at the compulsory conference and therefore the plaintiff issued the current proceeding to advance her claim, pursuant to the Court’s order by consent of 7 January 2005.
Plaintiff’s Submissions:
- [8]As set out in paragraph 3 above, the plaintiff served three offers to settle on the defendants pursuant to r 353 of the UCPR and submits that the offer made on 14 December 2006 falls within the requirements of r 360(1) of the UCPR in that the plaintiff obtained judgment for an amount “…no less favourable than the offer to settle…”[1] and therefore the plaintiff is entitled to her costs “…calculated on the indemnity basis unless the defendant shows another order for costs is appropriate in the circumstances”.[2]
- [9]The plaintiff’s three offers to settle under the UCPR are worded in a slightly different manner in terms of their respective formats but each offer contains the clear paragraph “This offer is made in accordance with Chapter 9 Part 5 of the Uniform Civil Procedure Rules 1999” and more importantly each offer was served on each defendant under cover of respective letters to their solicitors.[3]
- [10]
First Defendant’s Submissions:
- [11]The first defendant essentially submits that having regard to the provisions of s 40(8) of PIPA and because the plaintiff’s mandatory final offer at compulsory conference was more than the judgement awarded “…the plaintiff should be limited to her costs on the appropriate District Court scale, on only the standard basis”.[6]
- [12]The first defendant further submits that vis-à-vis it and the second defendant, because the first defendant’s formal offer to settle of 15 March 2006 was marginally in excess of its proportion of the plaintiff’s quantum of damages awarded, after taking into account the apportionment of liability between the defendants “… the second defendant pay the first defendant’s costs on an indemnity basis from the date on which the aforesaid offer to compromise the plaintiff’s claim, by payment of a sum in excess of its assessed share of the plaintiff’s damages, was made to the plaintiff.”[7]
- [13]On this point, in its supplementary submission of 31 January 2008, the first defendant has brought to the attention of the court that there had been negotiations between it and the second defendant wherein “…on 4th December 2006 it (second defendant) offered to the first defendant to pay $10,000 to the first defendant in return for an indemnification from the first defendant in respect of the plaintiff’s claim and costs…”[8] together with other ancillary undertakings, which offer was rejected by the first defendant.
- [14]Ultimately, the first defendant submits that the plaintiff should recover her costs of and incidental to the proceeding on a standard basis only, to be shared between the defendants “… to the date of first defendant’s offer to pay to the plaintiff $40,000.00, plus costs, and that thereafter the second defendant be ordered to pay the costs of both the plaintiff and the first defendant on the standard basis”.[9]
Second Defendant’s Submissions:
- [15]The second defendant’s submissions are essentially in the following terms:
- The plaintiff should recover her costs of and incidental to the proceeding on the standard basis only.[10]
- The plaintiff’s offer to settle of 14 December 2006 “…was not a proper offer in accordance with the UCPR. This offer was not made out to all the Defendants and did not offer to settle the claim against all the Defendants. Rather, this offer clearly stated that ‘the offer herein is an offer to settle the Plaintiff’s claim against the Defendant’. The facsimile forwarding the offer was addressed to the solicitors for the Second Defendant only”.[11]
- That it was only the plaintiff’s offer to settle of 22 September 2006 that was in accordance with the UCPR and as the judgment awarded was less favourable than this offer, the plaintiff should receive her costs assessed on the standard basis only.
- Vis-à-vis it and the first defendant the plaintiff’s costs should be apportioned in accordance with the finding of liability against the respective defendants namely “75% and 25% apportioned between the First Defendant and Second Defendant respectively”.[12]
Plaintiff’s Reply:
- [16]The plaintiff has replied to the second defendant’s submissions to the effect that although the word “defendant” (singular) as distinct from “defendants” (plural) appears in the document the offer to settle was stated to have been “…in accordance with Chapter 9 Part 5 (and) can only be an offer to both defendants pursuant to r 363(2)(a)”.[13] Further to this it is submitted that there is no evidence before the court that the second defendant “… was in anyway confused or mistaken about the offer made on 14 December 2006, as having been made to both defendants, as had all previous offers.”[14]
- [17]Further supplementary “Submissions in Reply” of 4 February 2008 were received from the second defendant:
- Challenging the plaintiff’s submission that it was “a mere typographical error” that the plaintiff used the word “defendant” as opposed to “defendants”;
- Reiterating that the plaintiff’s crucial offer of 14 December 2006 to satisfy r 360(1) was not made in accordance with r 363(2) of the UCPR and;
- That the payment of the plaintiff’s costs vis-à-vis it and the first defendant should be paid on the standard basis only in accordance with the apportionment of liability.
Findings:
- [18]I make the following findings on this application:
- (a)The plaintiff’s mandatory final offer made pursuant to s 39 of PIPA is only “relevant” to the extent that it might impact upon a defendant’s attitude or approach in any subsequent litigation between the parties which could influence any subsequent offers to settle by a defendant under the UCPR. In this proceeding the mandatory final offer was not significantly in excess of the judgment awarded to the plaintiff and in particular neither defendant made any practical offer to settle the plaintiff’s claim in the pre‑court procedure process. Therefore it could not be reasonably asserted on the defendants’ behalf that they were influenced or misled by such an offer which had the potential to affect their attitude to the quantum of the plaintiff’s claim;
- (b)The plaintiff’s offer to settle of 14 December 2006 complies with r 363(2)(a) of the UCPR in that although it refers to the singular term “defendant” as distinct from the plural “defendants” in its format, the same offer was forwarded in identical terms to each defendant so that there could be no doubt by either defendant, particularly in the light of what had gone before, that the plaintiff was offering to settle her claim against both defendants;
- (c)As the plaintiff’s offer to settle satisfies the requirements of r 360(1)(a) of the UCPR, she is therefore entitled to recover her costs of the substantive proceeding on an indemnity basis.
- (d)That as the plaintiff’s application for leave to commence her substantive proceeding was separate from her claim under proceeding BD67/2005, I am not satisfied in the exercise of the court’s discretion that the plaintiff is entitled to her costs of this application on an indemnity basis but rather on the standard basis only under the UCPR.
- [19]In the circumstances I make the following orders as to costs:
- The defendants pay the plaintiff’s costs of and incidental to the substantive proceeding being BD67/2005 including reserved costs (if any) to be assessed on the indemnity basis;
- The defendants pay the plaintiff’s costs of and incidental to the Application proceeding being BD4518/2004 including reserved costs (if any) to be assessed on the standard basis;
- The defendants pay the plaintiff’s costs as assessed in 1 and 2 above in the same proportion in which liability was assessed against each defendant, ie. the first defendant pay 75% of such costs and the second defendant pay 25% of such costs.
Footnotes
[1]R 360(1)(a) of UCPR.
[2]R 360(1)(b) of UCPR.
[3]See affidavit of John Cameron Harvey solicitor sworn 24 January 2008; para [25] of Charter Pacific Corporation Ltd v Belrida Enterprises Pty Ltd & Ors [2002] QSC 319.
[4]No. BD67/2005.
[5]No. 4518/2004.
[6]Para 4 of First Defendant’s Written Submissions of 9 January 2008.
[7]Ibid para 8.
[8]Para 1 of First Defendant’s Supplementary Submission of 31 January 2008.
[9]Ibid para 5.
[10]R 689 of UCPR.
[11]Para 10 of Submissions of the Second Defendant of 23 January 2008.
[12]Ibid para 12.
[13]Para 3 of Plaintiff’s Reply of 31 January 2008.
[14]Ibid para 4.