Wilson Vehicle Hire Pty Ltd v Doss
[2024] QMC 19
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- Unreported Judgment
- Wilson Vehicle Hire Pty Ltd v Doss[2024] QMC 19
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Wilson Vehicle Hire Pty Ltd v Doss[2024] QMC 19
Wilson Vehicle Hire Pty Ltd v Doss[2024] QMC 19
MAGISTRATES COURTS OF QUEENSLAND
CITATION: | Wilson Vehicle Hire Pty Ltd v Doss [2024] QMC 19 |
PARTIES: | WILSON VEHICLE HIRE PTY LTD (plaintiff/defendant by counterclaim) v DOSS, by her subrogated insurer (NRMA) (defendant/plaintiff by counterclaim) |
FILE NO/S: | M50247/22 |
DIVISION: | Civil |
PROCEEDING: | Claim and Counterclaim |
ORIGINATING COURT: | Brisbane |
DELIVERED ON: | 2 October 2024 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 27 August 2024 |
MAGISTRATE: | Acting Magistrate Janelle (Payne) Boegheim |
ORDER: |
|
CATCHWORDS: | TORTS – NEGLIGENCE – LOSS AND DAMAGE – whether plaintiff has suffered or proven any loss. TORTS – NEGLIGENCE – APPORTIONMENT OF RESPONSIBILITY AND DAMAGES – APPORTIONMENT – Where defendant’s car travels through a green traffic light but becomes stuck in the middle of the intersection due to the queued traffic. Where plaintiff’s in adjacent turning lane with right of way – where defendant manoeuvres slowly into defendant’s path of travel in attempt to safely clear intersection – whether plaintiff entered intersection on red or orange light and travelling too fast for conditions or to avoid defendant. Transport Operations (Road Use Management--Road Rules) Regulation 2009, reg 61(5) Uniform Civil Procedure Rules 1999 (Qld), rr, 490, 683, 514-516. Freeleagus v Nominal defendant [2007] QCA 116 Rains v Frost Enterprises Pty Ltd [1975] Qd R 287 |
COUNSEL: | Mr L Tassell for the Plaintiff/Defendant by Counterclaim Mr P Van Grinsven for the Defendant/Plaintiff by Counterclaim |
SOLICITORS: | Greystones Lawyers and Corporate Advisors for the Plaintiff/Defendant by Counterclaim Turks Legal for the Defendant/Plaintiff by Counterclaim |
- Summary
- [1]This judgment arises after the hearing of a claim for damages arising from a motor vehicle accident on 30 November 2021 at the intersection of Miles Platting Road, Padstow Road and Logan Road at Eight Mile Plains.
- [2]For the reasons that follow, I find both the plaintiff’s driver and the defendant were at fault (in different proportions) but the plaintiff did not suffer any loss as a result of the accident; there was there was no or negligible damage to the tow truck and the plaintiff did not prove it suffered any loss. As per the agreed quantum, there was $7,553.66 in loss and damage to the Mazda to the front passenger side and bumper.
- Nature and history of the claim
- [3]For simplicity, I will refer to the Plaintiff/Defendant by Counterclaim (or where context requires, the relevant driver) as the “plaintiff” and the Defendant/Plaintiff by Counterclaim as “the defendant”.
- [4]The plaintiff’s vehicle was a Hino tow truck, being driven by a contractor or employee.
- [5]The defendant was the driver of a Mazda 3 but the proceedings were conducted by her subrogated insurer (NRMA).
- [6]The plaintiff commenced the proceeding by way of Claim filed on 27 January 2022. On 8 March 2023, a settlement conference before a registrar was scheduled for 26 April 2023. On 17 April 2023, the defendant added a Counterclaim in the sum of $7,553.66 for repair costs, tyre and rim replacement, hire car costs and towing costs.
- [7]Up until the morning of trial, the plaintiff’s claim was for $25,131,70 (plus costs and interest), and as such, the bulk of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) had applied. By virtue of an amendment to the plaintiff’s Claim, for which leave was given at the start of the trial,[1] reducing the plaintiff’s claim to $2,120, the simplified procedures under r 514 UCPR applied to the (now) minor claim.
- [8]This is not in any way a reflection on the plaintiff’s current solicitors, who had only been appointed on 20 August 2024.
- Relevant considerations
- [9]Pursuant to Rule 516(2) UCPR, in deciding a minor claim, the court:
- “(a)must make the orders it considers fair and equitable to the parties to the proceeding; but
- (b)may, if the court considers it appropriate, dismiss the claim.”
- [10]The parties conceded that they owed each other a duty of care; and that the plaintiff was vicariously liable for its driver. The quantum of the defendant’s loss (if otherwise successful) and that the damage was caused by the accident was also admitted. Both the amount of the plaintiff’s quantum and that it was caused by the accident was denied; vigorously so, at trial.
- [11]Thus, the remaining elements of which I am required to be satisfied of are:
- (a)breach of the duty of care by either or both drivers;
- (b)in respect of the plaintiff’s claim, loss or damage as a result.
- [12]If it was found both drivers breached their duty of care and caused the accident, I would then need to consider apportionment of liability under the Civil Liability Act 2003 (Qld).[2]
- [13]Much of the trial concerned whether the tow boom or wheel pickup of the plaintiff’s vehicle, used to elevate the wheels of a car to enable towing from an underground carpark, was damaged or unable to be used by the plaintiff because of the accident.
- [14]The primary and unchallenged use of the plaintiff’s tow truck was to tow vehicles. It had a size ideal to tow vehicles from underground carparks, using a tow boom or wheel pickup. The tow boom protruded from the rear of the vehicle in the ordinary course of driving but was extended when in use to go under the wheels of the car being recovered. Once outside of the carpark, the recovered vehicle would be placed on a flat bed or other tow vehicle.
- The hearing and witnesses
- [15]At the hearing on 27 August 2024 both parties were represented by Counsel and solicitors. The plaintiff’s director, Mr Wilson gave evidence, as well as the plaintiff’s driver, Mr Stower.
- [16]Mr Harrison of ATB Engineering, initially subpoenaed by the defendant, was called by the plaintiff. ATB Engineering was the manufacturer of the tow boom. I found he gave reliable evidence in relation to whether the tow boom to the plaintiff’s tow truck had been or required repair. His evidence, which I accept, is that no one from the plaintiff ever rang ATB for advice as to whether the tow boom was unable to be used because of the accident and ATB only did routine maintenance on 15 May 2022, as part of which it did courtesy spray painting of the wheel pickup.[3]
- [17]The defendant gave evidence.
- [18]The defendant’s expert witness, Darryl Grieg of McNamara Greig, was given leave to give evidence by telephone but not called.
- [19]The plaintiff’s driver appeared to seek to give honest and reliable evidence. He was ready to accede to the fact that the plaintiff’s vehicle was barely damaged and other matters put it to him in cross-examination. It was put to him that the tow hitch had paint and scuff marks only because of the accident and he readily accepted the fact. He also gave honest evidence that his use of the tow truck was not limited by his employer in any way after the accident. I find that both facts were the case.
- [20]I also find that the defendant sought to give an accurate recollection of events, she paused when necessary. As is not unusual, both drivers believed their own perspectives and were concerned to ensure their versions of events was accepted but not in any way that was disingenuously so. They both had different recollections by virtue of their positions in the roadway, their experience and the passage of time but were, in my view, both honest and reliable witnesses.
- [21]The plaintiff’s owner was also called to give evidence. I cannot extend the same graciousness to the evidence that he gave. He was sometimes argumentative and during his evidence, kept seeking to extend the scope of damages that had occurred to the vehicle. For example, when shown a photo, he tried to invent other damage but which cannot not possibly have been related to the accident, as the photo was taken over a year later when the vehicle had a completely different livery. An invoice from ATB was produced but post-dated the accident by 6 months and was for repair maintenance. His evidence that the tow truck could not be used was not corroborated by any written report or company paperwork and at odds with the driver of the tow truck; and I reject it.
- Findings in relation to the accident
- [22]Publicly available photographs of the intersection were admitted by consent.
- [23]It was not in dispute, that:
- on the morning in question, sometime between 7am and 8am, the plaintiff and the defendant were on Miles Platting Road, initially travelling west, and both intending to turn right (north) onto Logan Road;
- the defendant was in the far-right lane which could only turn right; and the plaintiff’s driver was in the lane which could either go straight ahead or turn right, that is, in the lane left of the defendants;
- the defendant’s lane commenced more forward than the plaintiff’s, but the defendant had a much shorter arc to travel than the plaintiff;
- there was a traffic signal facing both the plaintiff and the defendant at the time they entered the intersection.
- [24]It is well settled that it is not necessary for the court, in reaching a decision, to refer to every piece of evidence or argument presented during the trial.[4]
- [25]Having the benefit of seeing and hearing the, mostly oral, evidence, I find:
- the defendant entered the intersection before the plaintiff’s driver, who had a much wider (and therefore longer) arc to travel;
- the defendant crossed into the intersection facing a green light and arrow;
- the plaintiff’s driver crossed the intersection to a ‘late’ orange (soon to be red) arrow, By that I mean, that at some point when the plaintiff was initially approaching the intersection with cars queued in front of him he may have seen a green light but the time that he crossed intersection, the light was at least orange and potentially had been for some time. His evidence was that he saw the light go from green to yellow and yellow to red; but that all of this occurred whilst in an intersection does not accord with the time delay associated with traffic light changes;
- I do not accept the plaintiff was driving as slowly as he alleged; I find instead, the plaintiff’s driver was anxious to get out of the intersection before the light turned red;
- the defendant crossed the intersection when the light was green but upon the natural path of travel when she came to Logan Road the traffic was queued, causing her to stop, after entering the intersection, while the traffic lights or arrows changed to red or yellow;
- at that time, the plaintiff’s vehicle was following on her passenger side, at a much faster speed, potentially right in her blind spot and out of view due to the turn; but her actions in entering the intersection without a clear path of travel and her shoulder checks at the time were insufficient to avoid risk of harm to the plaintiff.
- [26]Significantly, the evidence from the plaintiff’s driver was that his was the following vehicle and had observed the defendant’s vehicle stopped. His evidence was:
“XXN Mr VAN GRINSVEN: And I think you said that, as you approached that intersection, it was green?
Mr STOWER ---Yes.
MR VAN GRINSVEN: But then I got a bit confused because then you said it then went to yellow and then it went to red, and you saw that traffic had banked up; is that right?
MR STOWER: ---Yeah, so I was – 10 I was slowly, um – I was slowly slowing down because there was traffic starting – you know, it was starting to have traffic in my lane, but my lane was still moving slowly but, um, the right – the far right lane wasn’t moving at all.
MR VAN GRINSVEN: All right. At that point in time, had you noticed that the lane that Ms Doss was in had come to a complete stop?
MR STOWER: Oh, yes.
MR VAN GRINSVEN: And how far back had you noticed that?---
MR STOWER: Um, just at the time I was passing the lights.
MR VAN GRINSVEN All right. She was already completely stopped at that point in time?
MR STOWER---Ah, yes.[5]”
- [27]He also gave evidence that he observed the defendant’s left indicator.
- [28]The defendant’s evidence is that she nudged forward, to merge into the left lane which would have been the lane the plaintiff’s driver was naturally travelling in. Her evidence was that she could see the light cross the other side of the traffic and could see that it had gone red. Her evidence which, I accept, is that she performed a mirror check and looked in her rearview mirror. She also gave evidence that she performed a shoulder check.
- [29]However, I find that the time of the defendant conducting these checks and starting to merge, the plaintiff’s vehicle was already in the intersection. It was not possible, in my view, for the defendant to have conducted these checks and identified the intersection was so completely clear and that she proceeded so slowly to make the manoeuvre that by that time the plaintiff’s vehcile came around on a complete red light, avoided any other oncoming traffic and suddenly was in the vicinity of the defendant. The plaintiff’s vehicle can only have been in the intersection at the same time the defendant performed these checks but her checks were insufficient to identify that the plaintiff’s vehicle was there. She did not have a clear path of travel out of the intersection when she entered it. Accordingly, it was premature and unsafe for her to try to enter or leave the intersection in the manner that she did.
- [30]As for the plaintiff’s driver: whether due to chasing the light or another reason, his manner of driving did not allow sufficient time to take evasive action if a motorist was obliged to clear the intersection. Having seen (as he said he did) queued traffic in the defendant’s lane, he should not have entered the intersection with traffic lights or arrows changing to red or yellow. Having seen (as he said he did) the indicator, he ought have been in a position to have taken evasive action earlier.
- [31]Having regard to the point of impact of the vehicles and the fact that the defendant’s bumper was entirely ripped off, the hypotheses for the plaintiff cannot be sustained. I reject the plaintiff’s contention that the defendant deliberately merged behind the tow truck but in doing so drove into the tow boom.
- [32]As set out above, I find that the checks conducted by the defendant were not adequate to identify the plaintiff’s vehicle in the intersection and at the time that the defendant opted to move forward at a slow speed the plaintiff’s vehicle was travelling at an unknown speed but much faster than the defendants’ and because the defendant’s vehicle was starting to merge into plaintiff’s lane, the plaintiff’s vehicle clipped the defendant’s vehicle causing the bumper to dislodge. It is then a question of whether this should have been anticipated by the plaintiff as the following vehicle.
- [33]The evidence of the plaintiff’s driver is that it was heavily raining and the evidence of the defendant’s driver is that it was just raining. In any case, it was raining. Having regard to the rain, I find the plaintiff’s driver, did not drive with the due care and attention that was required particularly in entering the intersection on an orange light under such weather conditions.
- [34]The interactions after the accident may not have been assisted by the accusations by the defendant that the plaintiff’s driver had entered the intersection when the light was red. As I have set out, that in my view, is not how the accident occurred. The defendant, herself, may have seen a red light but that does not mean that at the point of time that the plaintiff’s driver crossed the intersection he was at a red light. It was simply a question of the different speeds. I find nothing turned on the statements that were made by any party after the accident.
- [35]The defendant gave evidence that she was upset that the plaintiff’s driver offered to tow her vehicle, at a cost. However, far from an admission, this is consistent with the plaintiff’s driver being of the view, at the time, that the defendant was at fault.
- Relevant authorities
- [36]By reg 61(5) of the Transport Operations (Road Use Management--Road Rules) Regulation 2009, the defendant was required to, “leave the intersection as soon as the driver can do so safely.” (emphasis added)
- [37]In Sibley v Kais (1967) 118 CLR 424, relied upon by the defendant, the High Court held that a breach of the road rules (in that case the right-hand rule) is not of itself determinative who caused an accident; the court must decide whether the driver acted reasonably in all the circumstances.
- [38]All vehicles entering an intersection or obliged to take reasonable care; this includes anticipating the unexpected, whether that be vehicles, pedestrians, or animals. As was said in Sibley v Kais at [6]:
“The obligation of each driver of two vehicles approaching an intersection is to take reasonable care. What amounts to "reasonable care" is, of course, a question of fact but to our mind, generally speaking, reasonable care requires each driver as he approaches the intersection to have his vehicle so far in hand that he can bring his vehicle to a halt or otherwise avoid an impact, should he find another vehicle approaching from his right or from his left in such a fashion that, if both vehicles continue, a collision may reasonably be expected.”
- [39]In Manley v Alexander (2005) 223 ALR 228, a driver was found to be negligent after impacting with a pedestrian lying on a roadway at 4:00 am. The High Court found that a reasonable driver paying due attention would have noticed the pedestrian and been able to avoid the impact.
- [40]In Freeleagus v Nominal Defendant [2007] QCA 116, the defendant’s right front tyre deflated on the highway in circumstances which involved no fault on the part of the driver; the driver moved her vehicle close to the concrete barrier in the middle of the road but it protruded half a metre into the right-lane of the three-lane carriageway. After a trial of the plaintiff's action for damages for personal injuries, the learned trial judge apportioned liability 70/30 in favour of the plaintiff.
- [41]The Court of Appeal set aside the judgment, and instead dismissed the plaintiff’s claim, finding the following driver negligent. Authorities in relation to the heavy onus on the following driver were set out including in Rains v Frost Enterprises Pty Ltd [1975] Qd R 287, where the Full Court of the Supreme Court of Queensland emphasised the responsibility of the following driver in a situation where the following driver had failed to avoid a collision with a vehicle which pulled out onto the carriageway from the side of the road; and set aside a 60/40 apportionment of liability by a trial judge made against the driver of a vehicle which pulled out from the side of a road at a very slow speed in favour of the driver of a following vehicle which collided with the former vehicle while overtaking it. The Full Court concluded that the following driver was wholly responsible for the collision.[6]
- [42]As stated in Freelagus at [23].
“One must not overemphasise the responsibility of the following driver or the importance of that driver's opportunity to avoid the risk created by the carelessness of another. It must be emphasised, of course, that cases of negligence in the management of motor vehicles must always be resolved on their own particular facts… In FAI General Insurance Co Ltd v Curtin, this Court, by majority, upheld the conclusion of the judge at first instance that a driver who stopped her car substantially on the incorrect side of the carriageway had not negligently caused or contributed to a collision. On the other hand, in Suncorp Insurance and Finance v Fitchett, 20 an apportionment of liability of only 20 per cent was made against a driver who drove his truck into the rear of a trailer and prime mover which was stationary on a straight stretch of road facing in the direction of travel of the driver of the truck. But, in that case, the driver of the prime mover and trailer could easily have pulled off the carriageway onto the shoulder of the road and so obviated all risk of an accident.
- [43]In the present case, I find the defendant could have identified the plaintiff’s vehicle and waited for it to pass her before trying to enter the plaintiff’s lane.
- [44]I have found also that the defendant did not hit the plaintiff from the rear but that the defendant was a following driver. The authorities set out above place a significant onus on the following driver to anticipate the unexpected. The plaintiff’s evidence was that he saw the defendant indicating. His manner of driving was such that he was not able to anticipate or take evasive action. He may have had right of way in lane but, on a rainy day, he did not take reasonable care to enter and proceed through the intersection in a way that allowed for a vehicle moving from the queued traffic or any other event that may have occurred; he was instead ‘chasing’ the light and did not have the truck so well in hand that he could stop or avoid an impact with the defendant.
- [45]Accordingly, I attribute liability to the plaintiff to 70% and 30% to the defendant, for the reasons I have outlined.
- Findings in relation to loss
- [46]The quantum of the damage to the defendant’s vehicle is accepted.
- [47]The plaintiff’s director also conducts motor vehicle repair business. After the accident he did not conduct any repairs or take the tow truck of the road but prepared an assessment in the sum of approximately $25,000 for the cost of repairing the vehicle.
- [48]As I have noted, at the time of trial the amount claimed had reduced to $2,120. The difference was that immediately after the accident, the plaintiff’s director prepared, through a related repair entity he controlled, an assessment that the whole of the tow undercarriage needed to be replaced. There was no expert opinion that anyone recommended this and the evidence of the supplier (ABT) squarely refuted this.
- [49]I accept the evidence of the plaintiff’s driver that after the accident he went to the yard at Capalaba. He was there for a short time and he did not particularly leave his vehicle at any point. I do not find that the plaintiff’s director carried out any significant repairs to the vehicle on 30 November 2021.
- [50]I find that the plaintiff’s director did not give any direction to the driver that the vehicle was to be operated in any reduced capacity after the evidence. The plaintiff’s director’s evidence in this respect was not supported by the plaintiff’s driver’s evidence that he continued to carry out his jobs, continued to be assigned work and at no point was he told that the tow truck had reduced carrying capacity or something that would make it unsafe for him to tow vehicles as he usually would.
- [51]Paint and scuff marks were nothing unusual for a tow boom, the purpose of which was to go under cars and on a concrete or solid surface, to drag cars out of underground carparks. There was no evidence that the tow boom was in perfect, unmarked condition before the accident or that the plaintiff needed it to be that way. In any case, I would find such evidence implausible having regard to the use made of the tow boom in the plaintiff’s business.
- [52]Mr Harrison from ABT was initially subpoenaed by the defendant. Once it was clear that the defendant continued to take issue as to whether the repairs needed to be, or were carried out, and after a luncheon adjournment, ABT was called by the plaintiff.
- [53]The evidence of Mr Harrison was that, in May 2022 (almost six months after the accident), ABT did conduct work on that vehicle but I find that that work was routine repairs and nothing that arose from the accident. The damage that had been suffered by plaintiff was the superficial scratches to the rear tow hitch. I find they were not repaired by ABT either. Nothing in there demonstrates that anything needed to be particularly straightened. After routine maintenance by ABT, the tow boom was quickly and courteously spray or cheaply painted; a quick, cosmetic courtesy service perhaps akin to ‘tyre black’ after a car service; and not because of any particular damage. It was no reflection on Counsel at trial that ATB’s evidence further confirmed what was already lacking in the plaintiff’s evidence.
- [54]I do not find it unusual that ABT needed to carry out routine maintenance on a tow hitch that is used regularly in the plaintiff’s business for towing vehicles around car parks. Wear and tear and even rubber or paint on the tow hitch is nothing surprising given this extreme purpose.
- [55]That means that the plaintiff has not proven on the balance of probabilities that any loss was suffered by it as a result of the accident. The plaintiff’s claim must therefore be dismissed.
- Costs
- [56]Unless there is correspondence, effective offers or something else that I should take into account, the general rule about costs is set out in Rule 681 UCPR (1), namely that costs of a proceeding, including an application in a proceeding, are in the discretion of the court but follow the event, unless the court orders otherwise.
- [57]An order for the payment of costs of proceedings by one party to another is always a discretionary order.[7]
- [58]Pending further submissions or identification of an effective offer to settle, I observe:
- the plaintiff has not succeeded at all in the claim that it initially made for $25,132 but reduced to about 8% of its value on the morning of trial;
- had the only issue in dispute been the proportionate liability for a modest claim by the plaintiff and the damage to the defendant’s vehicle, the dispute may well have taken a different course or settled at the settlement conference;
- the proceeding could have also been brought as a minor civil dispute, as a claim for an amount of not more than the prescribed amount for damage to property caused by, or arising out of the use of, a vehicle.[8] That might have been an argument to resist costs, had the plaintiff succeeded,[9] but that is not the case here.
- the defendant in my view has succeeded far more substantially than the plaintiff. The plaintiff has also put the defendant to unnecessary expense;
- it is possible to order that a party recover a part or percentage of their costs; and should a percentage order be appropriate, a summary of the parties’ relative success is as follows:
27/1/2022 to 16/04/2023 | 17/4/2023 to 26/08/2024 | Average (27/1/2022- 26/08/2024 | 27/08/2024 | |
Plaintiff's claim (filed 27 January 2022) | $25,132.00 | $25,132.00 | $25,132.00 | $2,120.00 |
Defendant’s counterclaim (filed 17 April 2023) | $0.00 | $7,554.00 | $7,553.66 | $7,553.66 |
Total amount in dispute (x) | $25,132.00 | $32,685.00 | $32,685.66 | $9,673.66 |
Plaintiff's success (y) | $0.00 | $2,266.10 | $2,266.10 | $2,266.10 |
Percentage of plaintiff's success (x/y) | 0% | 7% | 7% | 23% |
Percentage of defendant's success | 100% | 93% | 93% | 77% |
- before and during trial, a greater deal of time was spent by the defendant challenging the loss and damage claim, including the issue of notices of non-party disclosure and subpoenas;
- the counterclaim did not take up as much time as the claim at trial;
- in motor vehicle accident (MVA) cases, liability often turns on the oral evidence given at trial; and apart from the confidential settlement conference process (when drivers are often called), there is limited opportunity to ascertain the strength of the evidence before trial;
- the defendant was successful in resisting the claim; and partially succeeded on the counterclaim. As such the plaintiff should generally pay a substantial part of the defendant’s costs absent an effective offer or another reason;
- this is now a minor dispute; and is not a case where the court should descend into a consideration of multiple separate ‘events’ that might constitute the outcome of the proceedings;
- (k)multiple orders are undesirable but the claim and counterclaim are separate ‘events’;[10]
- (l)The applicable cost scales are those at the date the costs were incurred; and, in this case, to appropriately compensate the defendant, might, likewise, be those relevant to the quantum claimed when those costs were incurred.
- [59]Under Rule 683 UCPR costs of the proceedings in the Magistrate Courts should be either fixed; or assessed if the matter is complex. The Magistrates Court should generally fix the costs.[11]
- [60]Methods that will reduce further costs to the parties to the greatest extent possible are to be preferred. If parties are not in a position to fix costs at the time of judgment, best course would be for the parties to agree as to the amounts, in which case they can file a draft order fixing the costs, to be made by consent by the registrar;[12] or, if there is a contest, for the defendant to file the material required by Rule 490 UCPR so that costs can be fixed by a magistrate without an oral hearing. Alternatively, if that is considered too complex, an order might be made that costs be assessed due to the nature and complexity of the proceeding (Rule 683(3) UCPR); with the process of serving a costs statement and applying for appointment of a costs assessor, under Chapter 17A, Part 3, to follow.
- [61]I will, however, hear from the parties, in relation to costs, at the time judgment is delivered.
- Addendum
- [62]Prior to delivering judgment, notice was given to the parties that submissions would be required in relation to the question of costs. Having been informed of the existence of an effective offer to settle, and after an evidentiary matter resolved by oral evidence from the defendant’s solicitor, the parties consented to an order that the incidental to the proceedings, on an indemnity basis from the date of the offer, fixed in the sum of $12,998.91 and I make that order, by consent.
Footnotes
[1] Under Rule 375 UCPR – leave being required under Rule 378 UCPR.
[2] See Ripper v Suncorp Metway Insurance Limited [2012] QDC 107 (9 May 2012).
[3] Transcript, 1-88-91.
[4] Whisprun Pty Ltd v Dixon [2003] 234 CLR 492, Gleeson CJ, McHugh and Gummow JJ at [62]; Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385–386, Mahoney JA).
[5] Transcript, 1-30, ll 7–21.
[6] Paraphrasing [17]-[22] and relying on the helpful summary by Keane JA in Freelegus, including of the remarks of Dunne J and the Full Court’s findings in Rains v Frost.
[7] Gomba Holdings (UK) Ltd v Minories Finance Ltd (No 2) [1992] 4 All ER 588 (at 607) cited in Peter Carter Transport Pty Ltd and Anor v Swansway No. 2 Pty Ltd [2021] QDC 109.
[8] Queensland Civil and Administrative Tribunal Act 2009 QCAT Act, schedule 3, definition “minor civil dispute”, paragraph 1(c).
[9] See for example, the comments of Burnett DCJ in Rand v Simpson [2015] QDC 344 at [36] refusing to award costs in the Magistrates Court or an appeal, “ where a party unreasonably elected the Rolls-Royce solution, when plainly the Commodore solution would’ve been acceptable.”
[10] See Peter Carter Transport Pty Ltd and Anor v Swansway No. 2 Pty Ltd [2021] QDC 109 (18 June 2021)
[11] Rule 683; Peter Carter Transport Pty Ltd v Swansway No. 2 Pty Ltd [2021] QDC 109.
[12] Practice Direction No. 17 of 2010 (amended), paragraph 3(d).