Bailey v Albion & Suncorp Metway Insurance Ltd [2006] QDC 34

1 [2006] QDC 034 DISTRICT COURT CIVIL JURISDICTION JUDGE ROBIN QC No BD2152 of 2005 BERNADETTE BAILEY Plaintiff and COLIN HUGH ALBION and SUNCORP METWAY INSURANCE LIMITED First Defendant Second Defendant BRISBANE ..DATE 03/02/2006 ORDER CATCHWORDS: Uniform Civil Procedure Rules in r 355 - leave to withdraw an offer to settle which did not accurately reflect the plaintiff's instructions WARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings. -- 1 of 4 -- 03022006 T26/IRK13 M/T CMS11/2006 (Robin DCJ) 2 ORDER 1 10 20 30 40 50 60 HIS HONOUR: This is an application which has come on as a special in which the plaintiff seeks leave under Rule 355(3) to withdraw an offer to settle. The Court may, at any time within which an offer to settle is open for acceptance, give leave to withdraw. There was an error in the offer as compared with the instructions which the plaintiff's solicitor had. She may be disadvantaged if the offer is accepted and, therefore, it seems to me appropriate for the Court to make the order. The solicitor's researches have unearthed a decision of Judge Dodds, Simpson v Coastal Enterprises Pty Ltd [2005] QDC 015, in which his Honour refused the application for leave to withdraw because of the lack of promptness in the making of it. That is not a problem here. The offer was made only this week. His Honour referred to a useful decision of Wood J in the Supreme Court of New South Wales in an unreported case of Rosniak v GIO, 4th of October 1990, a passage from which is set out in annotations to Rule 355 which Mr Mould has supplied. That passage indicates the circumstances which may be appropriate for granting of the relief. It seems to me patent that a mistake of the kind deposed to by Mr Mould is plainly one. The application is ex parte and of its very nature it is inappropriate to require notice of it to be given to the second defendant. -- 2 of 4 -- 03022006 T26/IRK13 M/T CMS11/2006 (Robin DCJ) 3 ORDER 1 10 20 30 40 50 60 After preparing his material, Mr Mould became concerned that he had revealed too much of the substance of his offer, particularly from the point of view of a Judge inadvertently learning of it. The Court has done what it can since he is away from his office to assist, in producing a couple of replacement pages which contain an adequate but not an excessive description of the offer sought to be withdrawn. In the interests of keeping things confidential, which can properly be so kept, the order will provide that Mr Mould's affidavit, which also contains pertinent information, and the exhibit, be sealed up - not to be opened without a Judge's order. The last of Mr Mould's concerns is that the time of the making of the order which was 4.55 p.m. be noted on the draft order. I have noted it next to my signature. He was fearful that the precise hours of the day at which things happened might become significant. It may be that he has no cause for concern and that the Court's order, once made today, is taken as effective for the whole of the 24 hour period which, of course, means under that rule that it may have a retrospective effect measured in hours. One could not be confident about that, given that rule 355(3) provides for acceptance of the offer until an application like the present one is "decided". There will be an order in terms of the initialled draft. I will return to Mr Mould the outline of argument document -- 3 of 4 -- 03022006 T26/IRK13 M/T CMS11/2006 (Robin DCJ) 4 ORDER 1 10 20 30 40 50 60 which he supplied because its being on the file may reveal information appropriately kept confidential. ----- -- 4 of 4 --