Brookfield v State of Queensland (No 2) [2024] QSC 246

SUPREME COURT OF QUEENSLAND CITATION: Brookfield v State of Queensland (No 2) [2024] QSC 246 PARTIES: IAN WALTER BROOKFIELD (plaintiff) v STATE OF QUEENSLAND (defendant) FILE NO/S: BS15087 of 2021 DIVISION: Trial Division PROCEEDING: Claim ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 18 October 2024 DELIVERED AT: Brisbane HEARING DATE: Heard on the papers. Defendant’s costs submissions filed 27 September 2024. Plaintiff’s costs submissions filed 14 October 2024. JUDGE: Cooper J ORDER: The plaintiff pay the defendant’s costs of the proceeding (including any reserved costs relating to any application in the proceeding) to be assessed on the standard basis up to 3 April 2024 and on the indemnity basis from 4 April 2024 onwards. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – OFFERS OF COMPROMISE, PAYMENTS INTO COURT AND SETTLEMENTS – OFFER OF COMPROMISE OR OFFER TO SETTLE OR CONSENT TO JUDGMENT PURSUANT TO RULES – GENERALLY – where the defendant offered to settle the proceedings pursuant to the Uniform Civil Procedure Rules 1991 (Qld) – where the plaintiff did not accept that offer – where the plaintiff’s claim was dismissed – where the plaintiff argued that issue of costs should be deferred until after an appeal is determined – where the plaintiff argued that the defendant did not engage in mediation in good faith – whether an order pursuant to r 361A of the Uniform Civil Procedure Rules 1999 (Qld) should be made Uniform Civil Procedure Rules 1999 (Qld), rr 103, 361A, 681 COUNSEL: The plaintiff appeared on his own behalf -- 1 of 4 -- 2 DM Favell for the defendant SOLICITORS: The plaintiff appeared on his own behalf Crown Solicitor for the defendant [1] On 27 September 2024, I gave judgment dismissing the plaintiff’s claim against the defendant. The parties have now filed submissions on costs. [2] The defendant seeks an order that the plaintiff pay its costs of the proceeding, including any reserved costs. Further, in circumstances where the defendant made an offer to settle which the plaintiff did not accept, and the proceeding was subsequently dismissed, the defendant submits that its costs after the day of service of the offer should be assessed on the indemnity basis pursuant to r 361A of the Uniform Civil Procedure Rules (UCPR). [3] The plaintiff submits that, in circumstances where he has foreshadowed an intention to appeal, the issue of costs should be stayed until the outcome of that appeal is known. [4] Rule 681 of the UCPR provides that costs are in the discretion of the court but follow the event, unless the court orders otherwise. In circumstances where the defendant succeeded in having the proceeding dismissed, I can see no reason why the ordinary rule that costs follow the event should not apply in this case. [5] The plaintiff’s costs submissions set out reasons why he will appeal the liability judgment, including by reference to the emergence of fresh evidence. Those will be matters for the court which hears any appeal to consider. If the plaintiff succeeds on any appeal, that would have an effect upon the costs ordered after the trial. None of that is unusual. Neither the plaintiff’s intention to appeal nor the reasons he has articulated for bringing such appeal mean that the resolution of the question of costs which remains following the trial and the liability judgment should be deferred to await the outcome of any appeal. The defendant was entirely successful at trial and should have the benefit of a costs order in its favour. [6] That leaves the question of the basis upon which those costs should be assessed. [7] Rule 361A of the UCPR provides: “361A Costs if offer by defendant—dismissal of plaintiff’s proceeding (1) This rule applies if— (a) the defendant makes an offer that is not accepted by the plaintiff; and (b) the plaintiff’s proceeding is dismissed; and (c) 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 of 4 -- 3 (2) Unless a party shows another order for costs is appropriate in the circumstances, the court must order the plaintiff to pay the defendant’s costs— (a) calculated on the standard basis, up to and including the day of service of the offer; and (b) calculated on the indemnity basis, after the day of service of the offer.” [8] On 2 April 2024, the defendant sent an offer to settle to the plaintiff. The offer was served after 4:00 pm which means that, by reason of r 103 of the UCPR, it is taken to have been served the following day. The offer was in the following terms: “TAKE NOTICE that the defendant offers to settle the proceedings in accordance with the provisions of Chapter 9, Part 5 of the Uniform Civil Procedure Rules and on the following terms: 1. The defendant pays to the plaintiff the sum of twenty thousand dollars ($20,000.00) inclusive of interest plus legal costs incurred (if any) to be assessed on a standard basis. 2. The offer is open for acceptance for fourteen (14) days after the day of service of this offer. 3. Acceptance of this offer may be effected by serving a written notice of acceptance on the undersigned solicitor for the defendant.” [9] The plaintiff did not accept that offer. As the plaintiff’s proceeding was dismissed, r 361A will apply if I am satisfied that the defendant was at all material times willing and able to carry out what was proposed in the matter. Mr Lack, who was the Senior Principal Lawyer employed in the office of the Crown Solicitor and who had the conduct of the matter on behalf of the defendant, deposed that his instructions were that, when the offer to settle was made, the defendant was willing and able to carry out what was proposed in that offer. I am satisfied that was the case. Accordingly, r 361A applies. [10] That being the case, I must make the order contemplated by r 361A(2) unless the plaintiff shows that a different order for costs is appropriate in the circumstances. The plaintiff’s submissions raise two matters in support of his assertion that consideration of the question of costs should be stayed. [11] First, the plaintiff relies on his intention to appeal the liability judgment. I have already explained why that matter does not displace the ordinary rule that costs follow the event. Nor do I accept that, where r 361A applies, it provides a basis for an order for costs other than that contemplated by r 361A(2). [12] Secondly, the plaintiff submits that the defendant did not engage in the mediation of his claim in good faith. In rejecting the offer to settle, the respondent stated: “The attached is not an offer of settlement, it is the same insulting statement from the mediation.” -- 3 of 4 -- 4 [13] From that statement, I infer that the defendant had made an offer in substantially similar terms in the course of a mediation. The plaintiff submits that offer could not have been made in good faith in circumstances where his position paper at the mediation sought damages of between $2.5 million and $4.5 million. [14] The fact that the offer to settle was far less than the plaintiff considered he was entitled to does not establish a want of good faith. It says no more than that the defendant’s assessment of its potential exposure if the proceeding continued to trial was very different to the plaintiff’s. The dismissal of the proceeding establishes that, unless and until the plaintiff succeeds in appealing the liability judgment, the defendant’s assessment of its exposure was vindicated. I do not accept that the plaintiff’s criticism of the amount of the settlement provides a basis for an order for costs other than that contemplated by r 361A(2). [15] For the reasons set out above, I order that the plaintiff pay the defendant’s costs of the proceeding (including any reserved costs relating to any application in the proceeding) to be assessed on the standard basis up to 3 April 2024 and on the indemnity basis from 4 April 2024 onwards. -- 4 of 4 --