Bamford v Haggett [2004] QSC 454

SUPREME COURT OF QUEENSLAND CITATION: Bamford v Haggett [2004] QSC 454 PARTIES: PETER JOHN BAMFORD (plaintiff) v ROBERT CHARLES HAGGETT (defendant) FILE NO/S: SC No 4647 of 2004 DIVISION: Trial PROCEEDING: Trial ORIGINATING COURT: Supreme DELIVERED ON: 17 December 2004 DELIVERED AT: Brisbane HEARING DATE: 14 December 2004 and written submissions JUDGE: White J FURTHER ORDER: The defendant pay the plaintiff’s costs of and incidental to the proceedings calculated on the indemnity basis. CATCHWORDS: PROCEDURE - COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – COSTS OF WHOLE ACTION – WHERE MONEY PAID INTO COURT OR OFFER OF COMPROMISE MADE – OFFER OF COMPROMISE MADE – whether the plaintiff was a party to the proceedings when the offer to settle was served on the defendant - whether there is an entitlement to costs on the indemnity basis because proceedings were not commenced until the day after the offer to settle was dated Uniform Civil Procedure Rules (Qld), r 360 COUNSEL: R A I Myers for the plaintiff G D O’Sullivan with S B Whiten for the defendant SOLICITORS: Shine Roche McGowan for the plaintiff Stewarts Lawyers for the defendant [1] On 14 December 2004 I indicated that judgment would be given for the plaintiff in this proceeding for $254,050.85 subject to any arithmetical recalculation submissions. The plaintiff sought costs on the indemnity basis pursuant to Uniform Civil Procedure Rules 360 which provides “(1) If – -- 1 of 3 -- 2 (a) the plaintiff makes an offer to settle that is not accepted by the defendant and the plaintiff obtains a judgment no less favourable that the offer to settle; and (b) the court is satisfied that the plaintiff was at all material times willing and able to carry out what was proposed in the offer; the court must order the defendant to pay the plaintiff’s costs calculated on the indemnity basis unless the defendant shows another order for costs is appropriate in the circumstances.” [2] An offer to settle had been made in purported compliance with the UCPR in the following terms “TAKE NOTICE that the plaintiff HEREBY OFFERS to settle in accordance with Chapter 9, Part 5 of The Uniform Civil Procedure Rules, 1999 on the following terms:- 1. That the Defendant pay to the Plaintiff the sum of ($200,000.00) inclusive of any statutory refunds including WorkCover Queensland, Centrelink, Commonwealth Rehabilitation Service, Health Insurance Commission and any other Government Departments instrumentality; 2. That the Defendant pay the Plaintiff standard costs of and incidental to the action to be taxed on the District Court scale. This offer to settle is open for acceptance for the period of fourteen (14) days from the date of service. Acceptance of this offer to settle shall be effected by serving a Notice of Accepting Offer on the Solicitors for the Plaintiff. Signed: (Shine Roche McGowan) Description: Shine Roche McGowan Solicitors for the Plaintiff Dated: 27 May 2004” [3] Mr O’Sullivan for the defendant contended that there is no entitlement to costs on the indemnity basis because proceedings were not commenced until 28 May 2004, the date upon which the claim and statement of claim were filed in the registry. The claim and statement of claim as well as other documents and the offer to settle were served on the solicitors for the defendant on 28 May 2004. [4] Mr O’Sullivan submitted that since r 353 provides that “a party to a proceeding may serve on another party to the proceedings an offer to settle” and on 27 May there were no parties to any proceedings the offer to settle does not fall within the rules. -- 2 of 3 -- 3 This is not a meritorious submission and is not supported on the proper construction of the rules. [5] As Mr Myers has submitted, the UCPR do not prescribe any form for an offer to settle. Rule 353 prescribes only that an offer to settle be in writing and contain a statement that it is made pursuant to Part 5 of Chapter 9 of the UCPR. There is no requirement for an offer of settlement to be dated. Mr Myers submitted, and I accept, that the date appearing on the subject offer to settle may be construed as nothing more than the date upon which the offer was signed. [6] Rule 354 refers only to the time of service of an offer to settle. Form 38 of the prescribed forms is the Notice of Acceptance of Offer pursuant to r 358(5). That form requires the insertion of the date of service of the offer to settle. The proceedings were commenced on 28 May 2004 and were served on that date as was the offer to settle. Both the plaintiff and the defendant were parties to the action on that date. Accordingly, an offer to settle was made within the meaning of the UCPR. [7] Furthermore, r 5(2) requires the UCPR to be applied by the courts “with the objective of avoiding undue delay, expense and technicality and facilitating the purpose of these rules”. After the failure of the Personal Injuries Proceedings Act 2002 pre-trial compulsory conference to settle the dispute between the parties the plaintiff made his offer to settle at the earliest possible time. [8] The defendant is to pay the plaintiff’s costs of and incidental to the proceedings on the indemnity basis. -- 3 of 3 --