Evans v Transit Australia Pty Ltd & Anor [2000] QDC 39

DISTRICT COURT OF QUEENSLAND [2000] QDC 039 PARTIES: BETTY MAY EVANS (Plaintiff) v TRANSIT AUSTRALIA PTY LTD (First Defendant) and SUNCORP GENERAL INSURANCE LTD (Second Defendant) FILE NO/S: Plaint No. D78 of 1998 DELIVERED ON: 4 May 2000 DELIVERED AT: Maroochydore JUDGE: K S Dodds DCJ ORDER: Judgment for the second defendant against the plaintiff. Order the first defendant pay the plaintiff’s costs of and incidental to the proceeding to be assessed on the standard basis. Order the third party proceeding by the defendant by election be dismissed. Order the former defendant by election, WorkCover pay the second defendant’s (formally third party) costs of the proceeding to be taxed on the standard basis. Order that the first defendant pay the second defendant’s cost of and incidental to the proceeding to be assessed on the standard basis. CATCHWORDS: PRACTICE – OFFERS TO SETTLE – s 182C Workers’ Compensation Act 1990 COUNSEL: Mr M Grant-Taylor SC for the plaintiff Mr R Douglas SC and Mr R Myers for the first defendant Mr P Ambrose for the second defendant SOLICITORS: Boyce Garrick Lawyers for the plaintiff McInnes Wilson for the first defendant Quinlan Millar and Treston for the second defendant [1] These reasons relate to costs of the proceedings. On 3 April 2000, judgment was given for the plaintiff against the first defendant. The parties provided written submissions regarding costs and other orders required. [2] There is an error in the judgment amount against the first defendant. Damages were agreed between the parties in a gross amount of $70000. The refund due to WorkCover should have been subtracted. That amount was $13399.56. The -- 1 of 4 -- 2 correction is not opposed. The judgment for $70000 given on 3 April 2000 requires correction. I give judgment for the plaintiff against the first defendant for $56600.44. [3] The plaintiff had sued the first defendant for personal injury suffered in her employment by the first defendant as a bus driver. The compensable injury was to the plaintiff’s back. It was found to have been done cumulatively over a period between January 1996 and August 1996. [4] WorkCover elected to defend and brought in the second defendant as a third party. In its Entry of Appearance and Defence to the plaintiff’s claim it alleged the plaintiff’s action was incompetent by reason of non-compliance with the relevant notice provisions of Divisions 2 and 3 of Part 4 of the Motor Accident Insurance Act 1994. The plaintiff then joined the second defendant as a defendant in the action. Later the defendant by election sought and was granted leave to withdraw from the proceeding. [5] It is accepted by all parties that the Workers’ Compensation Act 1990 applies. Section 182C of that Act provided relevantly: (3) no order as to costs other than an order allowed under this section is to made by the court in the proceeding unless the Board certifies that the worker’s injury is serious injury. [6] It is accepted by all parties that the plaintiff’s injury was not certified by the board as a serious injury. Consequently only an order for costs allowed under section 182C can by made. [7] Section 182C further provided: (4) If a party to the proceeding makes an offer of settlement that is refused and the court later awards damages to the worker, the court must in the following circumstances make the order about costs provided for – (a) if the amount of damages awarded is equal to or more than the worker’s final offer – an order that the defendant pay the worker’s party and party costs from the day of the final offer; (b) if the amount of damages awarded is equal to or less than the defendant’s final offer – an order that the worker pay the defendant’s party and party costs from the day of the final offer. (5) if the award of damages is less than the worker’s final offer but above the defendant’s final offer, subsection (3) applies. -- 2 of 4 -- 3 [8] “Offer of settlement” is not defined in the Act. In its ordinary meaning in a case where damages are sought, it will include any offer to pay or accept an amount of damages made by one party to the proceedings to the other or others to bring the proceedings to an end. [9] Exchange of offers to settle is plainly contemplated by Section 182C. Parts of the section only operate when offers are made and are not accepted. The “final offer” of either party is the last offer made before judgment for damages is given. With respect, I am in agreement with the final opinion expressed by McGill SC DCJ in Jones v. Persal & Co [unreported DC Maryborough 97/0136 (Brisbane Plaint No. 99/1442) delivered 10 August 1999]. [10] The plaintiff’s plaint was presented at the registry on 18 March 1998 and issued. It was served on the defendant by post on or about 27 March 1998 under cover of a letter from the plaintiff’s solicitor dated 25 March 1998. Enclosed with the letter was an offer to settle by the plaintiff stated to be made in accordance with Part 9 of the District Court Rules (now repealed) to be open for 14 days after the date of service. The sum the plaintiff offered to accept was $15000 (clear of refund to WorkCover). [11] The offer was not accepted. There is no evidence of any other offer by either the plaintiff or the first defendant. Thus the offer was the plaintiff’s final offer for the purposes of section 182C(4)(a). The damages recovered by the plaintiff exceed the amount of the offer. In that event the subsection mandates that the court order the first defendant pay the plaintiff’s party and party costs from the day of the offer. [12] Section 182C is silent about when an offer to settle may be served. Plainly there must be a proceeding against an employer for damages for personal injury suffered by a worker in the employment. Under the rules in force at the time where the plaint was presented to the registry office the proceedings commenced upon that presentment. The rules required the Registry to issue, signed and sealed copies thereof to the plaintiff: see Rules 43 and 44 of the District Court Rules (now repealed). See now Rule 8 of the Uniform Civil Procedure Rules 1999 (UCPR). “A proceeding starts when the originating process is issued by the court”. [13] There is nothing unusual about the possibility of an offer to settle being served as here with the plaint. The now repealed Part 9 of the District Court Rules and Chapter 9 Part 5 of the UCPR both contemplate an offer to settle being made so soon as the proceeding is commenced. It is always within the power of the party to which an offer is made to make their own offer as soon as they are able. [14] An additional reason to adopt the construction I have above is that section 182C is plainly intended to regulate the right of a successful litigant to costs which otherwise ordinarily would follow the event. It does not purport to regulate when an offer may be made other than as I have already discussed. [15] The second defendant sought costs orders in its favour with respect to third party proceedings between WorkCover and the second defendant commenced on 1 July 1998, the plaintiff’s application of 24 August 1998 to join the second defendant as a defendant in the action and its costs of the trial of the action. In the circumstances, it is entitled to those orders. -- 3 of 4 -- 4 [16] The plaintiff’s application to join the second defendant nunc pro tunc on 24 August 1998, was successful and the costs of that application were ordered to be in the cause. The application by the plaintiff was necessitated by the Entry of Appearance and Defence of WorkCover the then Defendant by Election joining of the second defendant as a third party. [17] The first defendant does not oppose either a ‘Bullock’ or ‘Sanderson’ order as to costs in respect of any costs payable by the plaintiff to the second defendant. [18] Accordingly: 1. I give judgment for the second defendant against the plaintiff. 2. I order the first defendant pay the plaintiff’s costs of and incidental to the proceeding to be assessed on the standard basis. 3. I order the third party proceeding by the defendant by election be dismissed. 4. I order the former defendant by election, WorkCover pay the second defendant’s (formally third party) costs of the third party proceeding to be taxed on the standard basis. 5. I order that the first defendant pay the second defendant’s costs of and incidental to the proceedings other than the third party proceeding, to be assessed on the standard basis. -- 4 of 4 --