Jackson v Bishop & Anor (No. 2)
[2013] QDC 304
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- Unreported Judgment
- Jackson v Bishop & Anor (No. 2)[2013] QDC 304
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Jackson v Bishop & Anor (No. 2)[2013] QDC 304
Jackson v Bishop & Anor (No. 2)[2013] QDC 304
DISTRICT COURT OF QUEENSLAND
CITATION: | Jackson v Bishop & Anor (No. 2) [2013] QDC 304 |
PARTIES: | Noel Andrew Jackson (Plaintiff) v Paul Loris Bishop (First Defendant) & AAI LIMITED ABN 480 052 978 07 (Second Defendant) |
FILE NO: | 62/2012 |
DIVISION: | Civil |
PROCEEDING: | Trial |
ORIGINATING COURT: | District Court at Mackay |
DELIVERED ON: | 5 December 2013 |
DELIVERED AT: | Brisbane |
HEARING DATE: | On the papers |
JUDGE: | Kingham DCJ |
ORDER: |
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CATCHWORDS: | CIVIL – COSTS – INDEMNITY COSTS – MANDATORY OFFER TO SETTLE – where the plaintiff made a mandatory offer to settle under the Motor Accident Insurance Act 1994 (Qld) – where the second defendant did not accept that offer – where the plaintiff’s case did not substantially change after that offer was made - where the plaintiff largely succeeded at trial – where judgment was no less favourable to the plaintiff than the terms of the offer to settle – where the amount awarded was within the monetary jurisdiction of the Magistrates Court when the claim was filed - whether the second defendant should pay the plaintiff’s costs on the indemnity basis – whether costs should be assessed at the Magistrates Courts scale. Magistrates Courts Act 1921 (Qld), ss 2 & 4. Motor Accident Insurance Act 1994 (Qld), s 51C. Uniform Civil Procedure Rules 1999 (Qld), rr 388 & 697. Castro v Hillery & Ors [2002] QCA 359, applied. Jackson v Bishop & Anor [2013] QDC 279, cited. Lawes v Nominal Defendant [2007] QSC 103, cited. Morrison v Hudson & Anor [2006] QCA 170, applied. |
COUNSEL: | Mr. P.T. Cullinane for the Plaintiff. Mr. G.C. O'Driscoll for the Second Defendant. |
SOLICITORS: | Sciaccas Lawyers for the Plaintiff. Grant & Simpson Lawyers for the Second Defendant |
- [1]On 15 November 2013, I delivered reasons for my decision to award damages in the sum of $144,085.16 to Mr Jackson.[1] I have now received submissions from counsel for the parties which have drawn my attention to an error in calculating the plaintiff’s future recurring expenses. Counsel for the parties agree that, correcting that error, the damages which should be awarded are $126,035.61. This court has the power to correct a mistake or error which has resulted from an accidental slip, pursuant to Rule 388 Uniform Civil Procedure Rules 1999 (Qld). I exercise that power in vacating the order I made on 15 November 2013 and substituting in its stead the order now made.
- [2]The parties have made competing submissions about what costs order should be made. The plaintiff seeks costs on an indemnity basis because the judgment sum exceeds its mandatory final offer made under s 51C Motor Accident Insurance Act 1994 (Qld).
- [3]The second defendant resists the plaintiff’s application and seeks an order that the second defendant pay the plaintiff’s costs of and incidental to the proceedings assessed on the standard basis in accordance with the Magistrates Courts scale of fees.
- [4]The second defendant’s argument is that although the judgment is more favourable to the plaintiff than his mandatory final offer (of $120,000), it is only marginally so. Further, the amount awarded falls within the jurisdiction of the Magistrate’s Court.[2]
- [5]The court is required to consider mandatory final offers in making a decision about costs.[3] However, the fact that the judgment is more favourable than that offer is a significant but not a decisive factor and does not give rise to an automatic entitlement to indemnity costs.
- [6]The second defendant relies upon the reasoning of the Court of Appeal in Morrison v Hudson, where the Court confirmed that an offer to settle must be evaluated in light of the circumstances disclosed in the documents in the proceedings at the time the offer was made.[4] Therefore, where a case changes substantially after the offer was made, indemnity costs might be ordered.[5] The Court of Appeal confirmed that this approach was appropriate when considering the effect of a mandatory final offer under the Motor Accident Insurance Act.[6]
- [7]Counsel for the plaintiff, however, argued that there was not a substantial change in the case after the mandatory final offer was made. The only additional expert material was a short addendum medico-legal report of Dr Likely in respect of the second defendant’s expert witness, Dr Catherine Oelrichs. That addendum report reiterated opinions earlier expressed. The second defendant has not alerted me to any substantial change in the plaintiff’s case between the making of the mandatory final offer and the hearing.
- [8]The second defendant has quite rightly identified that the award is within the monetary jurisdiction of the Magistrates Court. Rule 697 UCPR provides that if the relief obtained by a plaintiff in a proceeding in the District Court is a judgment that, when the proceeding began, could have been given in a Magistrates Court, the costs must be assessed as if the proceeding had been decided in the Magistrates Court, unless the Court orders otherwise.[7]
- [9]The claim was commenced in July 2012. At that time, the monetary jurisdiction of the Magistrates Court was greater than the amount ultimately recovered. The plaintiff has made no argument as to why costs should be assessed on the District Court rather than the Magistrates Court scale.
- [10]I order the second defendant to pay the plaintiff’s costs of and incidental to the proceedings assessed on the indemnity basis against the Magistrates Court scale, unless otherwise agreed.
Footnotes
[1] Jackson v Bishop & Anor [2013] QDC 279.
[2] Sections 2 & 4 Magistrates Courts Act 1921 (Qld).
[3] Section 51C(10) Motor Accident Insurance Act 1994 (Qld).
[4] Morrison v Hudson & Anor [2006] QCA 170.
[5] Castro v Hillery & Ors [2002] QCA 359 at [79] per Williams JA.
[6] Morrison v Hudson & Anor [2006] QCA 170 at [2] per Williams JA.
[7] Lawes v Nominal Defendant [2007] QSC 103.