DISTRICT COURT OF QUEENSLAND

1. [1]
   In this matter judgment has been given by me for the plaintiff in the sum of $81,718.32.

2. [2]
   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

3. [3]
   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. 

4. [4]
   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

3. (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—

1. (a)
   at the conference; or

2. (b)
   if the conference has been dispensed with—within 14 days after the date of the agreement or order dispensing with the conference.

3. (2)
   A written final offer required under subsection (1) is called a mandatory final offer.

3. (3)
   A mandatory final offer for the upper offer limit or less is to be exclusive of costs.

3. (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.

3. (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.

3. (6)
   A mandatory final offer must remain open for 14 days and proceedings must not be started while the offer remains open.

3. (7)
   If the claimant brings a proceeding in a court based on a motor vehicle accident 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.

3. (8)
   The insurer must, before or at the time of filing a defence, file at the court a sealed envelope containing a copy of the insurer’s mandatory final offer.

3. (9)
   The court must not read the mandatory final offers until it has decided the claim.

3. (10)
   However, the court must (where relevant) have regard to the mandatory final offers in making a decision about costs.

3. (11)
   The court may, on application by a party, dispense with the obligation to make mandatory final offers.”

5. [5]
   Rule 360 of the Uniform Civil Procedure Rules provides: 

“360 Costs if offer to settle by plaintiff

3. (1)
   If—

1. (a)
   the plaintiff makes an offer to settle that is not accepted by the defendant and the plaintiff obtains a judgment no less favourable than the offer to settle; and

2. (b)
   the court is satisfied that the plaintiff was at all material times willing and able to carry out what was proposed in the offer; the court must order the defendant to pay the plaintiff’s costs calculated on the indemnity basis unless the defendant shows another order for costs is appropriate in the circumstances.

3. (2)
   If the plaintiff makes more than 1 offer satisfying subrule (1), the first of those offers is taken to be the only offer for this rule.”

6. [6]
   Rule 354(1)(b) provides that an offer to settle may be served at any time before the final relief is granted (emphasis added). 

7. [7]
   The plaintiff may rely upon a formal offer to settle made in circumstances even after the hearing but before judgment for the purposes of Rule 360. Such a conclusion was reached by Moynihan SJA in Fail v Hutton (2003) QSC 291.  However the Court may make another order for costs, if the defendant shows it is appropriate in the circumstances.

8. [8]
   The defendant in these circumstances argues that there are issues which when appropriately considered lead to “another order for costs” being made. The defendant relies on statements of Chesterman J as his Honour then was in Duffy v Hepron Pty Ltd (2007) QSC 106 at para 13 where his Honour said:

“a plaintiff who wishes to take advantage of the generosity of UCPR 360 should make an offer as promptly as is reasonable in the circumstances there is I think an element of unfairness in visiting on a defendant the entire costs of an action on the indemnity basis where an offer is made on the eve of trial and the offer subsequently turns out to have been a good one.  In my opinion depending of course on the circumstances of each case, justice would be better served by ordering indemnity costs only from the date of the offer”. 

9. [9]
   It is argued by the defendant that the plaintiff was only prepared to settle the claim on the payment of a sum more than twice that which he had recovered when the original offer was made. The plaintiff’s pleaded damages continued in the pursuit of those damages throughout the trial until its conclusion. As the defendant points out it was more than a month after the trial had concluded and when one might reasonably assume that all the expenses of the litigation had been incurred that the plaintiff served an actual offer of settlement.

10. [10]
    It may be proper to infer that the plaintiff was doing so in the hope of taking advantage of Rule 360 in the event that he was to be successful by making an offer at a level which he after trial expected to beat in the event of being successful. A further inference in the circumstances may well be that the plaintiff was not attempting to aid the parties to avoid incurring unnecessary costs. I conclude that it is not appropriate to regard this matter as a “test case”.

11. [11]
    Having considered these aspects and prepared as I am to draw the inferences submitted by the defendant I nonetheless have come to the conclusion that it is not appropriate to make “another order for costs” in all the circumstances of this case.

12. [12]
    Accordingly therefore I am satisfied that the plaintiff was at all material times willing and able to carry out what was proposed in the relevant offer to settle and I therefore order that the defendant pay the plaintiff’s costs calculated on an indemnity basis.