Uniform Civil Procedure Rules 1999 (UCPR Qld) - Digest
back to table of provisionsChapter 9 – Ending Proceedings Early
- Part 1 – Default
- [280] Default by plaintiff or applicant
- [281] Application of div 2
- [282] Service must be proved
- [283] Judgment by default - debt or liquidated demand
- [284] Judgment by default – unliquidated damages
- [285] Judgment by default – detention of goods
- [286] Judgment by default – recovery of possession of land
- [287] Judgment by default – mixed claims
- [288] Judgment by default – other claims
- [289] Judgment by default – costs only
- [290] Setting aside judgment by default and enforcement
- [291] Application of pt 2
- [292] Summary Judgment for plaintiff
- [293] Summary judgment for defendant
- [294] Claims not disposed of
- [295] Evidence
- [296] Service
- [297] Repealed
- [298] Directions
- [299] Costs
- [300] Stay of enforcement
- [301] Relief from forfeiture
- [302] Setting aside judgment
- [303] Discontinuance by party representing another person
- [304] Discontinuance by plaintiff or applicant
- [305] Discontinuance by defendant or respondent
- [306] Withdrawal of notice of intention to defend
- [307] Costs
- [308] Withdrawal of defence or subsequent pleading
- [308A] Discontinuance by parties when proceeding settled
- [309] Notice of discontinuance or withdrawal
- [310] Subsequent proceeding
- [311] Consolidated proceedings and counterclaims
- [312] Stay pending payment of costs
- [313] Definitions for pt 4
- [314] Approval as mediator
- [315] Approval as case appraiser
- [316] ADR register
- [317] Information to be given to registrar by ADR convenors and venue providers
- [318] Form of consent order for ADR process
- [319] Registrar to give notice of proposed reference to ADR process
- [320] When referral may be made
- [321] Proceedings referred to ADR process are stayed
- [322] When does a party impede an ADR process
- [323] Referral of dispute to appointed mediator
- [324] When mediation must start and finish
- [325] Parties must assist mediator
- [326] Mediator’s role
- [327] Liberty to apply
- [328] Mediator may seek independent advice
- [329] Record of mediation resolution
- [330] Abandonment of mediation
- [331] Requirements for certificate about mediation
- [332] Unsuccessful mediations
- [333] Replacement of mediator
- [334] Referral of dispute to appointed case appraiser
- [335] Jurisdiction of case appraiser
- [336] Appearances
- [337] Case appraiser may seek information
- [338] Case appraisal proceeding may be recorded
- [339] Case appraiser’s decision
- [340] Case appraiser’s decision on costs in the dispute
- [341] Effect of case appraiser’s decision
- [342] Requirements for case appraiser’s certificate and decision
- [343] Dissatisfied party may elect to continue
- [344] Court to have regard to case appraiser’s decision when awarding costs
- [345] Replacement of case appraiser
- [346] Payment of ADR costs
- [347] Party may pay another party’s ADR costs
- [348] If ADR costs paid to registrar
- [349] When ADR convenor or venue provider may recover further costs
- [350] Court may extend period within which costs are to be paid or grant relief
- [351] Costs of failed ADR process are costs in the dispute
- [352] Definitions for pt 5
- [353] If offer available
- [354] Time for making offer
- [355] Withdrawal or end of offer
- [356] Effect of offer
- [357] Disclosure of offer
- [358] Acceptance of offer
- [359] Person under a legal incapacity
- [360] Costs if offer by plaintiff
- [361] Costs if offer by defendant
- [362] Interest after service of offer
- [362A] Multiple beneficiaries
- [363] Multiple Defendants
- [364] Offer to contribute
- [365] Failure to comply with offer
- Division 1 – Default by plaintiff or applicant
- Division 2 – Proceedings started by claim
- Division 1 - Application
- Division 2--Applying for summary judgment
- Division 3 – Evidence
- Division 4 – Other procedural matters
- Division 1 - Preliminary
- Division 2--Establishment of ADR processes
- Division 3 - Mediation
- Division 4 – Case appraisal
- Division 5 – ADR Costs
Division 1 – Default by plaintiff or applicant
[280] Default by plaintiff or applicant go to top
Rule 280 Default by plaintiff or applicant
Rule 280, which empowers the Court to dismiss a proceeding for want of prosecution, applies in the context provided by r 5 and the implied undertaking of parties to proceed in an expeditious way: Asqwell Pty Ltd v BJC Drilling Services Pty Ltd [2012] QSC 413, [50] (Applegarth J).
In Tyler v Custom Credit Corp Ltd [2000] QCA 178, [2] Atkinson J (McMurdo P and McPherson JA agreeing) identified a number of factors that should be taken into account in considering whether or not to dismiss an action for want of prosecution (and for whether to give leave to proceed under r 389). As to the factors to be considered, Atkinson J said:
“These [factors] include:
- (1) how long ago the events alleged in the statement of claim occurred and what delay there was before the litigation was commenced;
(2) how long ago the litigation was commenced or causes of action were added;
(3) what prospects the plaintiff has of success in the action;
(4) whether or not there has been disobedience of Court orders or directions;
(5) whether or not the litigation has been characterised by periods of delay;
(6) whether the delay is attributable to the plaintiff, the defendant or both the plaintiff and the defendant;
(7) whether or not the impecuniosity of the plaintiff has been responsible for the pace of the litigation and whether the defendant is responsible for the plaintiff’s impecuniosity;
(8) whether the litigation between the parties would be concluded by the striking out of the plaintiff’s claim;
(9) how far the litigation has progressed;
(10) whether or not the delay has been caused by the plaintiff’s lawyers being dilatory. Such dilatoriness will not necessarily be sheeted home to the client but it may be. Delay for which an applicant for leave to proceed is responsible is regarded as more difficult to explain than delay by his or her legal advisers;
(11) whether there is a satisfactory explanation for the delay;
(12) whether or not the delay has resulted in prejudice to the defendant leading to an inability to ensure a fair trial.
The court’s discretion is, however, not fettered by rigid rules but should take into account all of the relevant circumstances of the particular case including the consideration that ordinary members of the community are entitled to get on with their lives and plan their affairs without having the continuing threat of litigation and its consequences hanging over them.” (citations omitted)
When proceedings have been prosecuted by a plaintiff in a dilatory way, the Court may dismiss a proceeding for want of prosecution or impose a sanction as to costs: Tyler v Custom Credit Corp Ltd [2000] QCA 178, [4] (Atkinson J, McMurdo P and McPherson JA agreeing).
The onus is on the applicant for striking out the plaintiff’s action for want of prosecution to show that the matter should be struck out: Cooper v Hopgood & Ganim [1999] 2 Qd R 113, 121 (Pincus JA); applied in Tyler v Custom Credit Corp Ltd [2000] QCA 178, [5] (Atkinson J).
The rationale for the rule requiring leave to proceed after a long delay is to prevent abuse of process: Tyler v Custom Credit Corp Ltd [2000] QCA 178, [5] (Atkinson J, McMurdo P and McPherson JA agreeing).
The Court must be satisfied that the continuation of the proceedings would not involve injustice or unfairness to one of the parties by reason of delay: Tyler v Custom Credit Corp Ltd [2000] QCA 178, [5] (Atkinson J, McMurdo P and McPherson JA agreeing); considering Walton v Gardiner (1993) 177 CLR 378; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
The exercise of the court’s discretion on an application under r 280 must be tempered by recalling the ‘well-established principle that the object of courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases’: Dick v Alan Powell Holdings [2008] QSC 219, [20] (Daubney J), citing Cropper v Smith (1884) 26 Ch D 700, 710 (Bowen LJ).
It is appropriate for a court to exercise a high degree of caution in adopting the remedy of summarily terminating a claim: Dick v Alan Powell Holdings [2008] QSC 219, [20] (Daubney J), citing Dey v Victorian Railways Commissioner (1949) 78 CLR 62.
Division 2 – Proceedings started by claim
[281] Application of div 2 go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[282] Service must be proved go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[283] Judgment by default - debt or liquidated demand go to top
Interest on judgment sums is determined by s 58 of the Civil Proceedings Act 2011 (Qld) and interest under that section is to be awarded at the rate specified under r 283. Rule 283 provides a useful guide to the exercise of discretion under s 58 of the Civil Proceedings Act 2011 (Qld): Chambers v Brice [2014] QSC 52, [9] (Lyons J).
[284] Judgment by default – unliquidated damages go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[285] Judgment by default – detention of goods go to top
The term “goods” as used in r 285 is broad and all-encompassing and takes its meaning from the context in which it is used. While the term is not defined in the UCPR, its ordinary meaning is “possessions, especially moveable effects or personal chattels”: Browning v Australia and New Zealand Banking Group Ltd [2014] QCA 43, [6] (McMurdo P).
[286] Judgment by default – recovery of possession of land go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[287] Judgment by default – mixed claims go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[288] Judgment by default – other claims go to top
Rule 288 applies only if the plaintiff is not entitled to apply for judgment under r 283: Crane Distribution Ltd v Brown [2011] QSC 90, [17] (Fryberg J).
Although r 288 contemplates relief being granted on the basis of the pleadings, in a probate matter the Court retains the discretion to grant probate on the basis of s 6 of the Succession Act 1981 (Qld). Therefore, despite the provisions of r 288, the court cannot merely rubber-stamp a probate application and thereby ignore valid wills or give effect to invalid wills: Lando v Sutton [2011] QSC 339, p.5 (Philippides J).
[289] Judgment by default – costs only go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[290] Setting aside judgment by default and enforcement go to top
Rule 290 permits a default judgment to be varied, whether irregularly entered or not, and whether the error resulted from accidental slip or omission: Cusack v De Angelis [2008] 1 Qd R 344; [2007] QCA 313, [21], [30] (Muir JA, Lyons J agreeing).
Setting aside irregularly entered judgments
An irregularly entered judgment must be set aside ex debito justitiae, as of right subject to the exercise of a power of amendment and the futility of interfering with the judgment: Cusack v De Angelis [2008] 1 Qd R 344; [2008] 1 Qd R 344, [36] (Muir JA, Lyons J agreeing). Accordingly, if a judgment is obtained irregularly, the usual order is that the default judgment be set aside: Browning v Australia and New Zealand Banking Group Ltd [2014] QCA 43, [26] (Muir JA, McMurdo P and Daubney J agreeing).
The right of the defendant to have an irregularly entered judgment set aside is plain and clear. The court acts upon an obligation; the order to set aside the judgment is made ex debito justitiae, and there are good grounds why that should be so, because the entry of judgment is a serious matter: Browning v Australia and New Zealand Banking Group Ltd [2014] QCA 43, [28] (Muir JA, McMurdo P and Daubney J agreeing), citing with approval Anlaby v Praetorius (1888) 20 QBD 764, 768 (Fry LJ).
Irregularly entered judgments are the product of the exercise of administrative acts performed without legal authority. Irregularity, as that term is used in relation to default judgments, normally results from a failure to comply with the rules of court relating to the entering of default judgments: Cusack v De Angelis [2008] 1 Qd R 344; [2007] QCA 313, [36] (Muir JA, Lyons J agreeing).
Setting aside regularly entered judgments
The court’s power to set aside a default judgment that was entered regularly is discretionary: Cook v D A Manufacturing Co Pty Ltd [2004] QCA 52, [18] (Williams JA, McPherson J and de Jersey CJ agreeing), citing Taylor v Taylor (1979) 143 CLR 1.
The discretion is in terms unconditional: Cook v D A Manufacturing Co Pty Ltd [2004] QCA 52, [16] (Williams JA, McPherson J and de Jersey CJ agreeing).
Considerations that a court will take into account before exercising its discretion to set aside a default judgment are whether:
- the applicant has a satisfactory explanation for the failure to appear;
- there was any unreasonable delay in making the application; and
- the applicant can demonstrate that it has a prima facie defence on the merits.
Cook v D A Manufacturing Co Pty Ltd [2004] QCA 52, [15] (Williams JA, McPherson J and de Jersey CJ agreeing).
It is not necessary to establish every single one of these above three matters before the discretion to set aside the judgment can be exercised: Cook v D A Manufacturing Co Pty Ltd [2004] QCA 52, [16] (Williams JA, McPherson J and de Jersey CJ agreeing).
The court is more concerned with whether the applicant can demonstrate a prima facie defence on the merits rather than the length of any delay, provided that no irreparable prejudice is thereby done to the plaintiff: Cook v D A Manufacturing Co Pty Ltd [2004] QCA 52, [19] (Williams JA, McPherson J and de Jersey CJ agreeing), citing with approval McPherson J’s statement in National Mutual Life Assn of Australasia Ltd v Oasis Developments Pty Ltd [1983] 2 Qd R 441, 449–50.
A prima facie defence on the merits is the most cogent of the three matters: Cook v D A Manufacturing Co Pty Ltd [2004] QCA 52, [19] (Williams JA, McPherson J and de Jersey CJ agreeing), citing with approval McPherson J’s statement in National Mutual Life Assn of Australasia Ltd v Oasis Developments Pty Ltd [1983] 2 Qd R 441 at 449–50.
Division 1 - Application
[291] Application of pt 2 go to top
The summary procedure set out in Chapter 9, Part 2, Division 2 only applies where a defendant has filed a notice of intention to defend. That occurs in a proceeding commenced by claim, or depending on the directions given by the Court, in a proceeding commenced by originating application which is ordered to continue as if commenced by claim: Allingham v Fuller [2013] QSC 81, [16] (Daubney J).
If the respondent to an originating application wishes to seek a summary determination, then that party should seek to apply to have the originating application dismissed or listed for hearing for a determination of the final relief sought: Allingham v Fuller [2013] QSC 81, [17] (Daubney J).
Division 2--Applying for summary judgment
[292] Summary Judgment for plaintiff go to top
The jurisdiction to give summary judgment under r 292 is limited to the relief set out in the claim, subject to any amendment which may be allowed: Hung v Hung [2018] QCA 87 at [26]; Equititrust Limited v Gamp Developments Pty Ltd [2009] QSC 115 at [12] (Philip McMurdo J).
There is no express requirement in r 292 that the right to relief be established entirely in accordance with basis pleaded. Ordinarily that would be required, because a defendant is entitled to be fairly informed of the case against it. However, discretionary considerations may permit amendment to the pleadings to conform with the basis upon which summary judgment is sought: Equititrust Limited v Gamp Developments Pty Ltd [2009] QSC 115 at [12] (Philip McMurdo J).
There is no principle that prevents summary judgment being granted to a party merely because their pleading was deficient. However, there may be instances where summary judgment ought to be refused because the pleading is so deficient as to be misleading: MacDonald v Deputy Commissioner of Taxation [2017] QCA 206 at [37]-[40].
Rule 292 should be applied using its clear and unambiguous language and keeping in mind the purpose of the UCPR to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense: Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232; [2005] QCA 227, [2] (McMurdo P).
The key expressions are “no real prospect” in the defence of a claim and “there is no need for the trial of the claim”. Rule 292 is expressed in clear and plain language. It requires no judicial gloss to understand its meaning: Coldham-Fussell v Commissioner of Taxation [2011] QCA 45, [98] (White JA, De Jersey CJ and McMurdo P agreeing).
When considering an application for summary judgment under r 292, the question is not whether the defendant’s case is “hopeless” or “bound to fail”. The appropriate inquiry is whether there exists a real, as opposed to fanciful, prospect of success: Bolton Properties Pty Ltd v JK Investments (Australia) Pty Ltd [2009] 2 Qd R 202; [2009] QCA 135, [1] (Holmes JA), [74] (Daubney J), Chesterman J dissenting.
The words “no real prospect” direct the court to see whether there is a “realistic” as opposed to “fanciful” prospect of success: Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232; [2005] QCA 227, [11] (Williams JA, McMurdo P and Atkinson J concurring), citing Swain v Hillman [2001] All ER 91, 92 (Lord Woolf), approved in Coldham-Fussell v Commissioner of Taxation [2011] QCA 45, [98] (White JA, de Jersey CJ and McMurdo P concurring).
When summary judgment will be granted
Issues raised in proceedings will be determined summarily only in the clearest of cases: Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232, [2] (McMurdo P).
Ultimately the rules are there to facilitate the fair and just resolution of the matters in dispute. Summary judgment will not be obtained as a matter of course and the judge determining such an application is essentially called upon to determine whether the respondent to the application has established some real prospect of succeeding at a trial: if that is established then the matter must go to trial: Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232, [17] (Williams JA, McMurdo P and Atkinson J concurring).
Rule 292 confers on the court a discretion, rather than an obligation, to grant summary judgment. That a defendant has no real prospect of successfully defending all or part of the plaintiff’s claim is a necessary step towards obtaining summary judgment but is not alone sufficient to compel the exercise of the court’s discretion: Bolton Properties Pty Ltd v JK Investments (Australia) Pty Ltd [2009] 2 Qd R 202; [2009] QCA 135, [72]- [73] (Daubney J).
It remains, without doubt, the case that great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of an opportunity for the trial of its case: Queensland University of Technology v Project Constructions (Aust) Pty Ltd (in liq) [2003] 1 Qd R 259; [2002] QCA 224, [7] (Holmes J, Mullins J and Davies JA agreeing).
The power to order summary judgment should be exercised with great care and should not be exercised unless it is clear that there is no real question to be tried: Gray v Morris [2004] 2 Qd R 118; [2004] QCA 5, [46] (McMurdo P, McPherson JA agreeing).
The rule is not meant to dispense with the need for a trial where there are issues which should be investigated at a trial: Foodco Management Pty Ltd v Go My Travel Pty Ltd [2002] 2 Qd R 249; [2001] QSC 291, [8] (Wilson J).
When applying r 292 the court must keep in mind that the interests of justice usually require the issues to be investigated at a trial. Summary judgment should not be given to either a plaintiff or defendant unless it is just to do so: Gray v Morris [2004] 2 Qd R 118; [2004] QCA 5, [46] (McMurdo P, McPherson JA agreeing).
The use a judge makes of r 292 in appropriate cases can save expense, achieve expedition and avoid the court’s resources being used up on cases where it serves no purpose, and generally, is in the interests of justice, that a matter not proceed to trial: Bernstrom v National Australia Bank Limited [2003] 1 Qd R 469; [2002] QCA 231, [37]–[38] (Jones J, Cullinane J agreeing), citing Swain v Hillman [2001] All ER 91, 92, 94 (Lord Woolf).
The principle that the power to dismiss an action summarily is not to be exercised lightly is applicable to any phrase that broadly has as its purpose the test for summary dismissal of a claim or defence: Coldham-Fussell v Commissioner of Taxation [2011] QCA 45, [102] (White JA McMurdo P and de Jersey CJ agreeing). As to this principle, White JA (McMurdo P and de Jersey CJ agreeing) in Coldham-Fussell v Commissioner of Taxation [2011] QCA 45, [102] cited the statement by Gaudron, McHugh, Gummow and Hayne JJ in Agar v Hyde (2000) 201 CLR 552, [57]:
“Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.”
Summary judgment for plaintiff
Once the Court is satisfied of the requirements that there is no real prospect of defending or succeeding and that a trial is not needed, the Court has a discretion to exercise as to whether or not to grant summary judgment: Willmott v McLeay [2013] QCA 84, [17] (Holmes JA, Fraser J and White JA agreeing).
Questions of the construction of contracts are appropriate to be dealt with on an application for summary judgment, though there may be cases involving questions of law of such difficulty that an applications judge faced with inadequate submissions and a lack of assistance as to authority cannot resolve them: Willmott v McLeay [2013] QCA 84, [24] (Holmes JA, Fraser J and White JA agreeing).
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 is authority for the proposition that the court may draw inferences from the available material and surrounding circumstances. The principles in Fancourt are not incompatible with r 292, so long as the rule is applied in the modern way, having regard to the purpose of the rule: Palermo v National Australia Bank Ltd [2017] QCA 321 at [71].
Summary judgment where there is a complex question of law
Where a summary judgment application raises complex issues of law, the judge hearing the application may be ill-advised to determine the application forthwith and give ex tempore reasons; but, it will normally be open to the judge to reserve his or her decision so that due consideration can be given to the issues: Filmana Pty Ltd v Tynan [2013] QCA 256, [72] (Muir JA, McMurdo P, and Holmes JA agreeing).
Time at which “real prospect” is to be assessed
On an application for summary judgment, it falls to the defendant to show, not that it can succeed on its claim at the time of the summary judgment application, but that there is a real prospect that it would succeed at trial. For that purpose, it might well suffice to outline the evidence to be obtained and to identify sources from which it is obtainable: RB Lease Pty Ltd v Heron [2013] QCA 181, [23] (Holmes JA, Daubney J, P Lyons J agreeing).
The prospect that a defendant may improve its position by proper amendment to the pleadings is a basis upon which summary judgment may be refused: National Australia Bank Ltd v Bluanya Pty Ltd [2018] QSC 49.
Onus of proof
The onus is on the applicant to prove the claim and to persuade the Court that there is no real prospect of the opposite party succeeding. Once an applicant for summary judgment has made out a prima facie case the evidentiary onus shifts to the respondent: Queensland Pork Pty Ltd v Lott [2003] QCA 271, [41] (Jones J);LCR Mining Group Pty Ltd v Ocean Tyres Pty Ltd [2011] QCA 105, [22] (White JA, Margaret Wilson AJA and A Lyons J concurring).
[293] Summary judgment for defendant go to top
Rule 293 is to be interpreted correspondingly with r 292: Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232; [2005] QCA 227, [11], [17] (Williams JA, McMurdo P and Atkinson J agreeing).
To invoke the court’s discretion to grant summary judgment under r 293(2), it is not necessary that the defendant establish that the claim is “bound to fail”: RB Lease Pty Ltd v Heron [2013] QCA 181 [21] (Holmes JA, Daubney J and P Lyons J concurring), citing Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232; [2005] QCA 227, 234; Bolton Properties Pty Ltd v JK Investments (Aust) Pty Ltd [2009] 2 Qd R 202; [2009] QCA 135, 206, 216.
Meaning of "no real prospect of succeeding"
The words “no real prospect” direct the court to see whether there is a ‘realistic’ as opposed to ‘fanciful’ prospect of success. This principle reflects the philosophy of the UCPR as set out in r 5 and applies with equal force to both rr 292 and 293: Bernstrom v National Australia Bank Limited [2003] 1 Qd R 469; [2002] QCA 231, [37]–[38] (Jones J, Cullinane J agreeing), citing Swain v Hillman [2001] All ER 91, 92, 94 (Lord Woolf)).
Rules 293 and 292 are not to be regarded as simply a restatement of the position as it previously stood prior to the introduction of the UCPR. They permit a more robust approach by the court in conformity with the aim of facilitating the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense. This is the stated purpose of the UCPR: McKenzie v Honnery [2002] QSC 303, [13] (Cullinane J), citing with approval McPhee v Zarb [2002] QSC 4; CSR Ltd v Casaron Pty Ltd [2002] QSC 21.
The principles upon which summary judgment might be entered are identified in the judgment of McMurdo J in Gray v Morris [2004] 2 Qd R 118 2004] QCA 5, [46]:
- Before r 293, there was no rule by which summary judgment could be given for a defendant. But in relation to summary judgment for a plaintiff, there was a change from the terms of previous rules to r 292, and each of rr 292 and 293 requires the court to be satisfied that the party against whom judgment is sought has no real prospect of success and that there is no need for a trial.
- Rules 292 and 293 should be applied by reference to their clear and unambiguous language, without a need for any paraphrase or comparison with a previous rule.
- In the application of the plain words of rr 292 and 293, and in particular the consideration of whether there is a need for a trial, a court must keep in kind why the interests of justice usually require the issues to be investigated at a trial.
- The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear there is no real question to be tried. That remains a forceful and authoritative guidance and is in no way in tension with the application of these rules according to their own terms: Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87, 99 (Mason, Murphy, Wilson, Deane and Dawson JJ).
A court should not be over ready to reach the conclusion that a matter is fanciful due to the consequences to the respondents who would be denied the opportunity of a trial: Geary v REJV Services Pty Ltd [2009] QSC 289, [39] (Cullinane J).
Rules 292 and 293, by their very terms, are more focused on the evidence by which the substantial issues will be determined than was the case under the preceding rules of court: in Qld Pork Pty Ltd v Lott [2003] QCA 271, [45] (Jones J).
Summary judgment should be given only in the clearest of cases where there is a high degree of certainty about the ultimate outcome if the matter went to trial: Westpac Banking Corp v Hughes [2012] 1 Qd R 581; [2011] QCA 42, [74] (Chesterman JA, Fraser JA and Martin J agreeing).
Where a necessary factual element of a plaintiff’s case can be decided against the plaintiff on a summary basis, a clear case for the application of r 293 exists. The court is right to give judgment on the claim or relevant part of the claim in those circumstances: Haggarty v Wood (No 2) [2015] QSC 244, [78] (Jackson J).
It will not be appropriate always under r 293 to give final judgment in a case where a plaintiff has not pleaded a viable case capable of proof at trial by evidence, but might be able to. However, an application under r 293 presupposes that the defendant has filed a defence in response to a properly prepared and filed claim and statement of claim, so the court should not be too wary of treating a plaintiff as having nailed their colours to the mast. That approach is all the more justified where the plaintiff has had numerous attempts to articulate their case over a lengthy period: Haggarty v Wood (No 2) [2015] QSC 244 [81] (Jackson J).
Whether a particular case fits into this category calls for the exercise of a discretionary judgment. Sometimes, a pleader’s skills may be the problem but the facts otherwise proved or indicated by the evidence will give pause to a Judge acting under r 293. However, in other cases, the difficulty will lie in the absence of a factual stratum to make a necessary allegation, not in the failure to allege it in the pleading. Rule 293 is properly engaged in such a case: Haggarty v Wood (No 2) [2015] QSC 244 [82] (Jackson J).
It may not be appropriate to grant summary judgment in relation to one of a number of causes of action, if that cause of action is potentially arguable at appellate level and there are efficiency considerations which favour allowing the whole matter to go to trial: Aklia Holdings Pty Ltd v The Carter Group Pty Ltd (in liq) [2017] QSC 75 (Bond J) at [33].
[294] Claims not disposed of go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
Division 3 – Evidence
[295] Evidence go to top
Where the source of information is records of accounts, it is not enough to say that there are “records”. The records must be described: Hanson Construction Materials Pty Ltd v Davey [2010] QCA 246, [32] (Chesterman JA, Muir JA and Applegarth J agreeing), citing Deputy Commissioner of Taxation v Ahern (No 2) [1988] 2 Qd R 158.
Moreover, the documents themselves should be put into evidence: Hanson Construction Materials Pty Ltd v Davey [2010] QCA 246, [32] (Chesterman JA, Muir JA and Applegarth J agreeing), adopting Gibbs J in R v Hally [1962] Qd R 214, 228, 230, and Dixon J in Potts v Miller (1940) 64 CLR 282, 304–5.
[296] Service go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[297] Repealed go to top
Rule 297 - Repealed
Division 4 – Other procedural matters
[298] Directions go to top
Where the court dismisses an application for summary judgment and imposes conditions about the future conduct of the proceeding, the court may impose a condition requiring an amount to be paid into court: Duhs v Pettett [2009] QSC 100, [37] (Applegarth J), citing Brypat Pty Ltd v Endless View Holdings Pty Ltd [2005] QSC 171; MPM Civil Pty Ltd v Ammbar Pty Ltd [2004] QSC 79; Beynon v Aikman Stoddart Accountants Pty Ltd [2004] QSC 387
The discretion to make such an order may be exercised when the defence to a plaintiff's claim is "shadowy": Duhs v Pettett [2009] QCA 347, [11] (per Fraser JA, Holmes and Keane JJA agreeing), citing DMS Shipping & Trading Co Ltd v Lionheart Asia Ltd [1996] 2 Qd R 20, 22-23.
However, an order imposing a condition requiring an amount to be paid into court should not be made if it would be tantamount to giving judgment on the basis that such an order could not be met: Duhs v Pettett [2009] QSC 100, [37] (Applegarth J), citing Commonwealth Development Bank of Australia Ltd v Kerr [2001] QSC 234, [23]; cf DMS Shipping & Trading Co Ltd v Lionheart Asia Ltd [1996] 2 Qd R 20, 22-23.
[299] Costs go to top
Rule 299(1) recognises that the approach to costs in relation to summary judgment applications is different. Such an application may fail even though that applicant may have good prospects of ultimately succeeding in the action. The party seeking to resist the application may rely on evidence which may not be accepted on the final hearing and the applicant may be obliged to proceed on the basis that the respondent's version of the facts be accepted for the purposes of the application. Because of considerations such as these, costs of summary judgment applications are something reserved or made the parties' costs in the cause: State of Queensland v Nixon [2002] QSC 296 [6]-[7] (Muir J).
Costs may be awarded against an applicant for summary judgment in circumstances where the applicant ought reasonably to have appreciated that the application would fail or where it is apparent that the application was made primarily with a view to securing a forensic advantage: State of Queensland v Nixon [2002] QSC 296, [7] (Muir J).
[300] Stay of enforcement go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[301] Relief from forfeiture go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[302] Setting aside judgment go to top
A party who relies on r 302 to have a judgment set aside by the court must provide a reasonable explanation for their failure to appear and a sufficient basis for the judgment not to be maintained: GEL Custodians Pty Ltd v RQ Consultants Pty Ltd [2010] QSC 181, [7] (Alan Wilson J).
On an application under r 302, the court is required to consider all relevant facts and circumstances: The Reserve Vault Pty Ltd v Barrier Reef Arts Pty Ltd [2012] QCA 35, [12] (Muir JA, Fraser JA and Daubney J agreeing).
A failure to explain the applicant’s non-attendance at the hearing of the application for summary judgment is a highly relevant consideration that may prove fatal to the success of the application in some cases. However, it cannot be treated as a precondition to the favourable exercise of the discretion to vary or set aside a judgment: The Reserve Vault Pty Ltd v Barrier Reef Arts Pty Ltd [2012] QCA 35, [13] (Muir JA, Fraser JA and Daubney J agreeing).
The relative importance of the applicant’s failure to explain their non-attendance to the exercise of the discretion will tend to diminish as an applicant’s case increases in strength. The Reserve Vault Pty Ltd v Barrier Reef Arts Pty Ltd [2012] QCA 35, [13] (Muir JA, Fraser JA and Daubney J agreeing).
It is not often that a defendant who has an apparently good ground of defence would be refused the opportunity of defending, even though a lengthy interval of time had elapsed provided that no irreparable prejudice is thereby done to the plaintiff: The Reserve Vault Pty Ltd v Barrier Reef Arts Pty Ltd [2012] QCA 35, [13] (Muir JA, Fraser JA and Daubney J agreeing).
Generally, evidence of a prima facie defence on the merits is a more “cogent” consideration than a satisfactory explanation of the failure to appear and the delay in making the application: The Reserve Vault Pty Ltd v Barrier Reef Arts Pty Ltd [2012] QCA 35 [13] (Muir JA, Fraser JA and Daubney J agreeing).
Rule 302 does not prescribe or confine the matters to which a court may have regard in deciding whether to set aside a judgment. Considerations that are relevant to the exercise of the court’s discretion include whether a defence has been filed, and the existence of evidence of facts that prima facie give rise to an arguable defence. Such evidence will normally be afforded substantially more weight than uncorroborated allegations in a defence: The Reserve Vault Pty Ltd v Barrier Reef Arts Pty Ltd [2012] QCA 35 [34] (Muir JA, Fraser JA and Daubney J concurring).
[303] Discontinuance by party representing another person go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[304] Discontinuance by plaintiff or applicant go to top
Rule 304 imposes a restriction on the ability of a party to discontinue a proceeding or withdraw part of that proceeding without the leave of the court: Kennedy v Griffiths [2014] QSC 43 , [27] (Boddice J).
Rule 304 is subject to r 303: Logan v Camm and Whitson (as executors of the Will of LR Camm dec'd) [2008] QSC 255, [18] (Dutney J).
The discretion to grant or refuse leave to discontinue is not fettered; however, the court will ordinarily grant leave provided that doing so will not cause injustice to the opponent, since it is ordinarily not desirable to compel a claimant to litigate: Fuller v Toms [2010] QCA 283, [25] (Fraser JA,White JA and McMurdo P agreeing), citing with approval Covell Matthews & Partners v French Wools Ltd [1977] 1 WLR 876, 879 (Graham J).
A relevant consideration to the exercise of the discretion whether to grant leave to discontinue under r 304(2) is whether the discontinuance would have the effect that the appellant could not subsequently file a counterclaim in the discontinued proceeding:Fuller v Toms [2010] QCA 283, [28] (Fraser JA, White JA and McMurdo P agreeing).
Whilst r 304 does not, in terms, permit the court to impose conditions on the grant of leave to discontinue, r 310 clearly contemplates that conditions may be imposed to which the grant of leave is subject. There are a number of cases in which leave to discontinue was made conditional upon the plaintiff not commencing fresh proceedings arising out of the same cause of action, or circumstances, which were the subject of the proceedings allowed to be discontinued: Wickham v Bells Securities Pty Ltd [2006] QSC 167, [25] (Chesterman J), citing Covell Matthews; Carlovers Carwash Ltd v Sahathevan [2001] NSWSC 351; Tarleton & Peters Pty Ltd v McNamara Property Management Ltd (Unreported, Supreme Court of New South Wales, Young J, 11 September 1991.
Meaning of ‘proceeding’
Rule 304 also gives a power to discontinue or withdraw a part of a proceeding. An application brought in a proceeding, whilst not an originating process, arguably forms part of that originating proceeding. Having regard to the philosophy in r 5(2), an application filed in a proceeding is properly to be considered, in the context of r 304, to be a part of that proceeding: Kennedy v Griffiths [2014] QSC 43, [30]-[31] (Boddice J).
[305] Discontinuance by defendant or respondent go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[306] Withdrawal of notice of intention to defend go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[307] Costs go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[308] Withdrawal of defence or subsequent pleading go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[308A] Discontinuance by parties when proceeding settled go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[309] Notice of discontinuance or withdrawal go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[310] Subsequent proceeding go to top
The general principle on which applications of the type made pursuant to r 310 are resolved is that the court will normally allow a plaintiff to discontinue if they want to, provided that no injustice will be caused to the defendant. It is not desirable that a plaintiff should be compelled to litigate against his will. The court should therefore grant leave, if it can without injustice to the defendant, but in doing so should be careful to see that the defendant is not deprived of some advantage which he has already gained: ABN Amro Morgans Ltd v Alders [2008] QSC 160 [3] (Jones J), citing Covell Matthews & Partners v French Wools Ltd [1977] 1 WLR 876, 879.
Whilst r 304 does not, in terms, permit the court to impose conditions on the grant of leave to discontinue, r 310 clearly contemplates that conditions may be imposed to which the grant of leave is subject. There are a number of cases in which leave to discontinue was made conditional upon the plaintiff not commencing fresh proceedings arising out of the same cause of action, or circumstances, which were the subject of the proceedings allowed to be discontinued: Wickham v Bells Securities Pty Ltd [2006] QSC 167, [25] (Chesterman J), citing Covell Matthews; Carlovers Carwash Ltd v Sahathevan [2001] NSWSC 351; Tarleton & Peters Pty Ltd v McNamara Property Management Ltd (Unreported, Supreme Court of New South Wales, Young J, 11 September 1991).
The present rules are consistent with a long held view of the nature of a discontinuance as not destroying a claimant's right of action: Cormie v Orchard [2001] QCA 546, [22] (McMurdo P, Thomas JA and Atkinson J).
[311] Consolidated proceedings and counterclaims go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[312] Stay pending payment of costs go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
Division 1 - Preliminary
[313] Definitions for pt 4 go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[314] Approval as mediator go to top
Repealed.
[315] Approval as case appraiser go to top
Repealed.
[316] ADR register go to top
Repealed.
[317] Information to be given to registrar by ADR convenors and venue providers go to top
Repealed.
[318] Form of consent order for ADR process go to top
Repealed.
Division 2--Establishment of ADR processes
[319] Registrar to give notice of proposed reference to ADR process go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[320] When referral may be made go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[321] Proceedings referred to ADR process are stayed go to top
Where the mediation is an informal arrangement not governed by s 101 of the Supreme Court of Queensland Act 1991 (now s 42 of the Civil Proceedings Act 2011), and has been adjourned to a date to be fixed and there is no act that could be described as a “referral” to the ADR process, r 321 will have no effect: Raabe v The Brisbane North Regional Health Authority [2005] QSC 41, [9]-[10] (Holmes J).
Rule 321 is subject to any orders made by the court, and the court may exercise its discretion to order that any such stay pursuant to r 321 be lifted: Raabe v The Brisbane North Regional Health Authority [2005] QSC 41, [9]-[10] (Holmes J).
[322] When does a party impede an ADR process go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
Division 3 - Mediation
[323] Referral of dispute to appointed mediator go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[324] When mediation must start and finish go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[325] Parties must assist mediator go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court. .
[326] Mediator’s role go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[327] Liberty to apply go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[328] Mediator may seek independent advice go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[329] Record of mediation resolution go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[330] Abandonment of mediation go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[331] Requirements for certificate about mediation go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[332] Unsuccessful mediations go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[333] Replacement of mediator go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
Division 4 – Case appraisal
[334] Referral of dispute to appointed case appraiser go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[335] Jurisdiction of case appraiser go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[336] Appearances go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[337] Case appraiser may seek information go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[338] Case appraisal proceeding may be recorded go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[339] Case appraiser’s decision go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[340] Case appraiser’s decision on costs in the dispute go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[341] Effect of case appraiser’s decision go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[342] Requirements for case appraiser’s certificate and decision go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[343] Dissatisfied party may elect to continue go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[344] Court to have regard to case appraiser’s decision when awarding costs go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[345] Replacement of case appraiser go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
Division 5 – ADR Costs
[346] Payment of ADR costs go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[347] Party may pay another party’s ADR costs go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[348] If ADR costs paid to registrar go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[349] When ADR convenor or venue provider may recover further costs go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[350] Court may extend period within which costs are to be paid or grant relief go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[351] Costs of failed ADR process are costs in the dispute go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[352] Definitions for pt 5 go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[353] If offer available go to top
An offer under r 353 must be an offer to settle every dispute or matter in the document constituting the claim. It must encompass at least one document (whether a claim, counter claim or third party notice) and it must offer to settle everything in that document. It may offer to settle everything in several such documents: Charter Pacific Corporation Limited v Belrida Enterprises Pty Ltd [2003] 2 Qd R 619; [2002] QSC 319, [15] (Fryberg J).
Rule 353 does not authorise separate offers to different parties: Charter Pacific Corporation Limited v Belrida Enterprises Pty Ltd [2003] 2 Qd R 619; [2002] QSC 319 [18] (Fryberg J).
Originating applications
An offer to settle under Chapter 9 Part 5 of the UCPR is not applicable to actions commenced by originating application: Northbound Property Group Pty Ltd v Carosi [2013] QSC 189 [30]-[32], [35] (McMeekin J).
Calderbank offers to settle
Even though upon proper characterisation of an offer to settle it may be concluded it is not made under Chapter 9 Part 5 of the UCPR, the rules still provide guidance as to how the discretion on costs regarding the offer should be exercised: Northbound Property Group Pty Ltd v Carosi [2013] QSC 189, [35] (McMeekin J).
[354] Time for making offer go to top
If a party ascertains that the other party has not received the offer, that party can resubmit the offer at any time before judgment pursuant to r 354(1)(b):Queensland Timber Wholesalers (Production) Pty Ltd v Hatton [2012] QCA 128, [26] (McMurdo P, Fraser JA and Mullins J agreeing).
[355] Withdrawal or end of offer go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[356] Effect of offer go to top
The expression “without prejudice” in r 356 can be construed as referring to an offer made for the purpose of settling a dispute which should not be taken as an admission of liability: Kozak v Matthews [2007] QSC 204, [4] (Helman J).
[357] Disclosure of offer go to top
Rule 357(2) impliedly supports the construction of the scheme of Part 5 of Chapter 9 UCPR that once the question of liability has been decided and the relief to be given determined then the offer can be referred to: Kozak v Matthews [2007] QSC 204, [4] (Helman J).
[358] Acceptance of offer go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[359] Person under a legal incapacity go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[360] Costs if offer by plaintiff go to top
The fact that a plaintiff’s offer is made at a late stage in proceedings is not a sufficient reason to depart from the effect of r 360 in the ordinary case: Australia Yinmore Holding Pty Ltd & Ors v Liu (No 2) [2018] QSC 136 (Mullins J) at [8].
A defendant is entitled to have the material necessary to enable it to make an informed decision as to whether it should make an offer under r 360, and if so, for how much. Where the plaintiff’s conduct deprives the defendant of the opportunity to make such a decision, that is a relevant consideration in determining whether the plaintiff should have its costs on any indemnity basis: Campbell v Jones [2003] 1 Qd R 630; [2002] QCA 332, [71] (Fryberg and Mullins JJ).
Where an action should never have been commenced in the Supreme Court, and it is not a case where it emerges only after an action is commenced that it could have been brought in the District Court, this is a further matter relevant in determining whether the plaintiff should have its costs on an indemnity basis: Campbell v Jones [2003] 1 Qd R 630; [2002] QCA 332, [72]-[73] (Fryberg and Mullins JJ).
In a case which turn upon the oral evidence to be given at trial and its credibility, a pre-trial offer may still be effective if given at a time when the risks could be assessed: Australia Yinmore Holding Pty Ltd & Ors v Liu (No 2) [2018] QSC 136 (Mullins J) at [18].
An “offer to settle”, within the meaning of r 360, is one which contains an element of compromise. A proposal which demands nothing less than all the relief sought in the claim plus costs is not an “offer to settle”, within the meaning of r 360: Jones v Millward [2005] 1 Qd R 498; [2005] QCA 76, 500 (Holmes J, McMurdo P and Jerrard JA agreeing). An offer to settle for an amount greater than the claimed amount is also outside the scope of this rule: Bigby v Kondra (No 2) [2017] QSC 154 (Daubney J) at [4].
In an “all or nothing” case, an offer that involves each party bearing their own costs involves a sufficient element of compromise: Australia Yinmore Holding Pty Ltd & Ors v Liu (No 2) [2018] QSC 136 (Mullins J) at [9]
Mott v Philip & Ors; Prosser v Philip & Ors (No 2) [2017] QSC 255
The purpose of the UCPR, to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense, is not promoted by insistence of a party on nothing less than all relief sought together with costs: Jones v Millward [2005] 1 Qd R 498; [2005] QCA 76 , 500 (Holmes J, McMurdo P and Jerrard JA agreeing).
Rule 360 is applicable only where a party has made a valid offer to settle under the Rules: Charter Pacific Corporation Limited v Belrida Enterprises Pty Ltd [2003] 2 Qd R 619; [2002] QSC 319, [36] (Fryberg J).
The mere fact that the party making an offer under the Rules has failed on some issues does not ordinarily suffice as a ground to make “another order for costs” in the sense of r 360(1). However, if the party had been guilty of wasting time, the circumstances might disclose a sufficient basis for such an order: Charter Pacific Corporation Limited v Belrida Enterprises Pty Ltd [2003] 2 Qd R 619, [41] (Fryberg J).
Whilst a valid offer may be made by a plaintiff to only one group of the various defendants who are alleged to be severally liable to the plaintiff, the circumstances of the case may make it impractical for the offeree to accept the offer and cause the court not to give effect to the offer: Mott v Philip [2017] QSC 255 (McMeekin J) at [12]-[17]
[361] Costs if offer by defendant go to top
Rule 361 does not prevent an order for indemnity costs being made in favour of a defendant save in the particular circumstances covered by the rule: Sultana Investments Pty Ltd v Cellcom Pty Ltd (No 2) [2009] 2 Qd R 287; [2008] QCA 398, [9]-[11] (White AJA, McMurdo P and Holmes JA agreeing).
Where a successful defendant has made an offer to which r 361 does not apply, such as where a plaintiff obtains no judgement in its favour as a consequence of an appeal order, then the general rule under r 689, that costs follow the event unless another order is more appropriate, applies. In these circumstances, the court has a large and unfettered discretion to order costs to be assessed on an indemnity basis: [2009] No 2 [2008] QCA 398 [13]- [14] (White AJA, McMurdo P and Holmes JA agreeing).
Where Plaintiff Wholly Unsuccessful
In its original form, r 361 applied where “the plaintiff obtains a judgment that is not more favourable to the plaintiff than the offer to settle”. When the rule was in these terms, it was held that the rule had no application to cases where the plaintiff was wholly unsuccessful: Emanuel Management Pty Ltd (in liquidation) v Foster’s Brewing Group Ltd [2003] QSC 299 (Chesterman J) at [36]-[39]; Rathie v ING Life Ltd [2004] QSC 146 (Wilson J) at [52]-[53]; Anderson v AON Risk Services Australia Ltd [2004] QSC 180 (Philip McMurdo J)at [10]. In 2014, r 361 was amended so that it applied where “the plaintiff does not obtain an order that is more favourable to the plaintiff than the offer”. It has been suggested that the rule may now apply in cases where the defendant is wholly unsuccessful: Surfstone Pty Ltd v Morgan Consulting Engineers Pty Ltd [2015] QSC 322 (Peter Lyons J) at [11]. However, this suggestion has not been adopted: Carlyon v Town & County Pubs No 2 Pty Ltd T/A Queens Hotel Gladstone (No 2) [2015] QSC 25; Schofield v Hopman (No 2) [2017] QSC 324 (McMeekin J) at [4]-[6]; Gramotnev v Queensland University of Technology (No 2) [2018] QSC 81 (Flanagan J) at [8]-[9].
‘First offer’ being the first offer more favourable than the judgment obtained by the plaintiff
The words in r 361 should be given their plain meaning and where a defendant makes more than one offer satisfying r 361(1), the first of the offers made is taken to be the only offer. Applying the literal meaning of rr 361(1) and 361(4), the “first offer” is taken to be the first offer that is more favourable to the plaintiff than the judgment obtained: Cameron v Nominal Defendant [2001] 1 Qd R 476; [2000] QCA 137, [11] (McMurdo P, Davies JA, Moynihan J).
Rule 361 is only applicable where the plaintiff obtains a judgment that is less favourable than the offer that was made. Nevertheless, the court can take account of the plaintiff’s non-acceptance of the offer in the exercise of its discretion as to costs. According to the circumstances, indemnity costs may be awarded where a plaintiff has unreasonably rejected an offer. Other factors may be relevant to the exercise of the discretion, including whether the offer involved any genuine element of compromise and the stage the litigation had reached when it was made: Dawnlite Pty Ltd v Riverwalk Realty Pty Ltd (No 2) [2013] QSC 257, [5]-[7] (Wilson J).
[362] Interest after service of offer go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[362A] Multiple beneficiaries go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[363] Multiple Defendants go to top
Rule 363 is applicable if a statement of claim alleges at least one liability, which is in law, a joint or joint and several liability (whether or not pleaded as such), against some or all of the defendants, and rights of contribution or indemnity may exist between those defendants: Charter Pacific Corporation Limited v Belrida Enterprises Pty Ltd [2003] 2 Qd R 619; [2002] QSC 319, [23]-[24] (Fryberg J).
Rule 363 does not apply to a claim made by multiple plaintiffs: Charter Pacific Corporation Limited v Belrida Enterprises Pty Ltd [2003] 2 Qd R 619; [2002] QSC 319, [27] (Fryberg J).
To be effective under r 363, the offer should not be made separately to each defendant but to all. Kerle v BM Alliance Coal Operations Pty Ltd (No 2) [2017] QSC 7.
[364] Offer to contribute go to top
It is significant that the rule does not state, as in r 360(1), that the effect of non-acceptance of the offer is an award of indemnity costs in specified circumstances. Accordingly, it seems that the exercise of the general discretion provided for in r 364(3) calls for a consideration of the principles which apply to Calderbank offers: Mott v Philip (No 2) [2017] QSC 255 (McMeekin J) at [22].
[365] Failure to comply with offer go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.