Ketchell v Deacon & RACQ Insurance Limited
[2022] QDC 180
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- Unreported Judgment
- Ketchell v Deacon & RACQ Insurance Limited[2022] QDC 180
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Ketchell v Deacon & RACQ Insurance Limited[2022] QDC 180
Ketchell v Deacon & RACQ Insurance Limited[2022] QDC 180
DISTRICT COURT OF QUEENSLAND
CITATION: | Ketchell v Deacon & RACQ Insurance Limited [2022] QDC 180 |
PARTIES: | ROBIN ALI RICHARD KETCHELL (Plaintiff) v HAYDEN ANDREW DEACON (First Defendant) AND RACQ INSURANCE LIMIMTED (ACN 009 704 152) |
FILE NO: | 93 of 2019 |
DIVISION: | Civil |
PROCEEDING: | Costs Judgment |
ORIGINATING COURT: | District Court |
DELIVERED ON: | 30 August 2022 |
DELIVERED AT: | Townsville |
HEARING DATE: | On the papers |
JUDGE: | Coker DCJ |
ORDER: |
|
CATCHWORDS: | COSTS – PROCEDURE – offer to settle, 1 pursuant to Motor Accident Insurance Act 1994 and 2 pursuant to the UCPR – whether those offers or any one of them was more favourable than the amount awarded pursuant to the judgment – whether any terms attaching to the offers rendered them less favourable than the judgment obtained which was in a lesser sum than that which was offered – whether the inclusion of any such additional terms forfeits its consideration as a complying offer. |
CASES: | McKay v Armstrong & Anor [2020] QDC 146 |
COUNSEL: | A. Philp QC for the Plaintiff J. Trevino QC for the Plaintiff M. Grant-Taylor QC for the Second Defendant |
SOLICITORS: | Roati Legal for the Plaintiff Quinlan Miller Treston for the Second Defendant |
Introduction
- [1]On the 16th of December 2021 judgment was given by me in favour of Robin Ali Richard Ketchell against the second defendant, RACQ Insurance Limited, in the sum of $497,884.70. That amount related to a claim by the plaintiff in relation to injuries sustained as a result of a motor vehicle accident. It was not the case that liability was in question, but rather only a determination required, in respect of the quantum of damages.
- [2]At the time that the orders were made in relation to damages the issue of costs remained undetermined and I made orders with regard to submissions being filed addressing the costs as might be sought by the plaintiff. Though there have been some significant delays in relation to the making of those submissions, they are now before me, though I should note that there remains live an issue on the part of the plaintiff where, as is detailed in paragraph 11 of the written submissions:
The plaintiff also seeks to advance an argument in respect of the Centrelink refund that could make substantial difference to the plaintiff’s position.
- [3]Thereafter, at paragraphs 12 through 15, the following is argued on the part of the plaintiff:
12. Had the Plaintiff accepted the second defendant’s second offer, pursuant to s 17(3)(a) and s 1184 of the Social Security Act 1991 (Cth), 50% of the settlement sum would have been used to calculate the amount required to be refunded to Centrelink. However, in respect of the judgment sum, the Centrelink refund is to be calculated only upon so much of the award that relates to lost earnings or lost capacity to earn (s 17(3)(b) of the Social Security Act); which would potentially result in a lesser refund to Centrelink than that which would have been required if the second offer had been accepted.
13. The ultimate result may be, having regard to the amount of the refund required after judgment as opposed to that required if the plaintiff had settled, that in terms of the nett result for the plaintiff, that the judgment is far more favourable than the second offer. However, the plaintiff is not presently in a position to advance this argument.
14. The current compensation recovery notice from Centrelink provides that the sum of $104,608.22 is recoverable. On 22 April 2022, the plaintiff sought a formal review of that decision on the basis that the calculation has been made in error in that the awards for future economic loss and the pecuniary loss regarding the inability to practice traditional hunting and fishing were wrongly included for the purposes of the calculation. A response from Centrelink has not yet been received despite advice from Centrelink that it aims to complete a formal review within 49 days.
15. Given the potential significance to the plaintiff’s position on costs, the plaintiff respectfully seeks a further extension of time to file costs submissions to await the outcome of the Centrelink review and if necessary, will bring a formal application.
- [4]What is contended ultimately in relation to this matter is that, having regard to the amount of the refund required after judgment, as opposed to that required if the plaintiff had settled in terms that were offered, the judgment is more favourable than the second offer that was made, in relation to this matter. I shall come to that subsequently.
- [5]What of course is required to be considered first, is whether, in fact, there is any basis upon which it would be appropriate to adjourn or delay the determination in relation to costs, pending any further information. What is noted in that regard, however, is that whilst the plaintiff indicates that they seek an extension of time to await the outcome of any Centrelink review and, if necessary, to bring a formal application, a further period in excess of six weeks has now passed since the filing of the submissions and there is no further application before the Court, nor is there any indication of other information held, particularly arising from the Centrelink inquiries that are said to have been made.
- [6]The position of the second defendant in relation to this matter is simply to say that, “Enough is enough”. The judgment is noted as delivered on the 16th of December 2021. There was a period of 35 days originally provided in order for the plaintiff to file and serve submissions, which therefore expired on the 20th of January 2022, but that five months passed before the filing of the actual submissions that are now before the Court. More particularly, the position of the second defendant is to say that they oppose any further extension of time noting that there appears to be little, if any, activity from Centrelink in complying with any indications of a change in position, notwithstanding their own advices to the effect that they would complete a formal review within 49 days and that that was indicated on the 22nd of April 2022.
- [7]Again, time has passed. Nothing has happened and I am satisfied that it is appropriate that there should be no further extension of time in relation to this matter on the part of the plaintiff, but rather that a determination should be made. That then leads to a consideration of what might be suggested are the basic principles to be considered in relation to an issue of costs.
- [8]What is acknowledged is that the second defendant has made three offers to settle the proceedings, all of which preceded the trial of the matter and, of course, therefore preceded the judgment delivered in respect of the proceedings. The first of the offers that was made was a mandatory final offer (MFO) made pursuant to the provisions of section 51C(6) of the Motor Accident Insurance Act 1994. That offer was in the sum of $500,000 and was dated the 3rd of April 2019. The second of the offers was that which was made pursuant to the provisions of chapter 9 part 5 of the Uniform Civil Procedure Rules 1999, and that offer of the 9th of December 2019 was in the amount of $550,000.
- [9]Subsequently, an offer for an identical amount was made again pursuant to the provisions of chapter 9, part 5 of the Uniform Civil Procedure Rules, though with conditions. What is argued on the part of the plaintiff, and it is of course the only real argument that can be brought in relation to this matter, is that whilst on a monetary basis the offer was greater than that which was ordered pursuant to the determination in relation to this matter, there were other considerations which mean that it was not more favourable to the plaintiff than the offer that was originally made.
- [10]What is argued on the part of the plaintiff, therefore, is that whilst rule 361 of the Uniform Civil Procedure Rules, at least insofar as is relevant, provides for consideration of costs if an offer has been made by the defendant, it is not relevant in relation to this particular matter. The relevant parts of rule 361 are subsections (1) and (2)(a) and (b):
- 361Costs if offer by defendant
- (1)This rule applies if—
- (a)the defendant makes an offer that is not accepted by the plaintiff and the plaintiff does not obtain an order that is more favourable to the plaintiff than the offer; and
- (b)the court is satisfied that the defendant was at all material times willing and able to carry out what was proposed in the offer.
- (2)Unless a party shows another order for costs is appropriate in the circumstances, the court must—
- (a)order the defendant to pay the plaintiff’s costs, calculated on the standard basis, up to and including the day of service of the offer; and
- (b)order the plaintiff to pay the defendant’s costs, calculated on the standard basis, after the day of service of the offer.
- [11]What the plaintiff argues is that both the mandatory final offer (MFO) and the first offer made in relation to this matter contained requirements which would not have arisen and did not arise pursuant to the terms of the judgment, and therefore, those requirements rendered the offer less favourable than the judgment obtained. The provisions that are said to have rendered the offer less favourable than the judgment obtained are summarised in paragraphs 8(a) and (b) of the outline and are in these terms:
- (a)that the terms of the settlement were to remain confidential between the parties (subject to limited disclosure);
- (b)that the plaintiff acknowledge that the second defendant did not admit injury, loss or damage.
- [12]In support of the contention that those provisions rendered the offer less favourable than the judgment obtained, reliance is placed upon the decision of his Honour Judge Morzone QC of this Court in McKay v Armstrong and Another [2020] QDC 146, where his Honour was called upon to consider the nature of an offer made in circumstances similar to this in some respects but, in my assessment, very different in other respects. His Honour considered both the quantitative and qualitative matters that were relevant to a consideration as to whether the overall effect of the judgment was more favourable or not to a plaintiff than the offer made pursuant to the provisions of rule 361 of the Uniform Civil Procedure Rules.
- [13]There, his Honour noted particularly at paragraph 18 as follows, and paragraph 18 is set out in paragraph 9 of the submissions on behalf of the plaintiff:
Although the offer exceeded the judgment by over $3000, it contains terms extending beyond the claims in the proceeding and conditional on the agreement of a deed, which in turn imposed on the plaintiff conditions of strict confidentiality and a contradictory acknowledgment that the defendant does “not admit injury, loss or damage”. Consequently, the terms of the offer sought to burden the plaintiff with a lifelong silence without any acknowledgment of liability for her injury, loss or damage. These extraneous matters did not, and could not, form part of any judgment in the proceeding. The court did not, and could not, compel the plaintiff to execute a form of release and discharge in those terms. As for the acknowledgment that the second defendant does “not admit injury, loss or damage”, that contradicts the defendants’ pleadings and the conduct of the case for the sole purpose of adjudicating causation and consequential loss and damage. Further, the judgment did not restrain the plaintiff from publication or force confidentiality about the nature and effect of the outcome.
- [14]His Honour went on, then, after noting those particular matters and the distinctions to be drawn between the terms of settlement and a judgment, to indicate that:
The extraneous aspects of the offer, it seems to me, are incongruent with the fundamental attributes of our system of open justice.
- [15]His Honour therefore found that the plaintiff did obtain a judgment that overall is more favourable to the plaintiff than the offer with the extraneous terms, however, in that particular matter and extremely different to the circumstances that arise here, the offer that was made exceeded the judgment, by only a little more than $3000. In this case, however, the offer exceeded the judgment initially by a little in excess of $20,000 and, far more significant, the second offer that was made in relation to this matter exceeded the amount received by way of judgment by some $70,000.
- [16]What is contended on the part of the second defendant is that whilst a condition requiring the execution of a deed of release and discharge imposed a burden upon the plaintiff which was not arising pursuant to the judgment, however, such considerations, particularly when there is a disparity such as that which arises here, is such that any arguments as accepted by his Honour Judge Morzone QC in McKay v Armstrong, fall by the wayside. Quite simply, the second defendant argues that rule 361 speaks of an offer which needs to be considered of itself, rather than in any circumstance where it might be suggested that because there are extraneous or additional terms, it does not constitute an offer.
- [17]More particularly, however, it is argued that though Judge Morzone QC in McKay v Armstrong and Another held that the judgment was overall more favourable to the plaintiff than the offer, that is not the basis upon which a consideration should be given to the terms of rule 361 of the Uniform Civil Procedure Rules. Quite simply, the second defendant argues that an offer as put by the second defendant in relation to this matter, does not “forfeit” its status as a complying offer merely because it includes a provision that the parties sign a release which might incorporate or include a confidentiality clause. More particularly, the second defendant goes on to argue that the inclusion of an acknowledgement to the effect that the second defendant did not admit injury, loss or damage is of little consequence when there is, in fact, a confidentiality clause such that a requirement not to disclose would also include both parties not disclosing any acknowledgement that might be included therein.
- [18]Ultimately, therefore, the second defendant argues that the second of the offers in particular was rejected by the plaintiff and that that has therefore led to him receiving a judgment a little in excess of $70,000 less than what was ordered. It is asked rhetorically by the second defendant therefore whether a judgment for $70,000 less than what was offered containing a requirement that there be an acknowledgement that the second defendant did not admit injury, loss, or damage is valued at greater than $70,000. The submission made by the second defendant is that such a contention is objectively implausible.
- [19]To be frank, I could not agree more. The situation here is that whilst an offer of $500,000, and therefore, a little over $20,000 more than that which was found in the judgment was rejected, a second and subsequent offer acknowledging a greater amount being paid could not be seen to be noncompliant in any way or to be less favourable, because of the clauses contained within it.
- [20]I am satisfied that it is therefore clearly a situation where the provisions of rule 361 of the Uniform Civil Procedure Rules becomes relevant, and I note that subrule (2) specifically requires that the Court “must” order the defendant to pay the plaintiff’s costs, calculated on the standard basis, up to and including the day of the service of the offer and thereafter that the plaintiff pays the defendant’s costs. Whilst there may have been some strength in the argument relating to the original offer that was made in respect of this matter pursuant to the Motor Accident Insurance Act, such an argument, in my view, clearly falls by the wayside when a more significant offer is made, notwithstanding that it may have included some additional terms, over and above what would arise pursuant to the requirements that may be placed as a result of a judgment being obtained.
- [21]Accordingly, the appropriate orders in relation to this matter are as follows:
- 1.That the Second Defendant pay the Plaintiff’s costs of the proceedings up to and including 10 December 2019;
- 2.That the Plaintiff pay the Second Defendant’s costs of the proceedings from 11 December 2019.