Calvert v Mayne Nickless Ltd (No 2) [2005] QCA 303 [2006] 1 Qd R 141

SUPREME COURT OF QUEENSLAND CITATION: Calvert v Mayne Nickless Ltd (No 2) [2005] QCA 303 PARTIES: CELIA CALVERT (plaintiff/respondent) v MAYNE NICKLESS LIMITED ACN 004 073 410 (defendant/appellant) FILE NO/S: Appeal No 11244 of 2004 SC No 154 of 2002 DIVISION: Court of Appeal PROCEEDING: General Civil Appeal – Further Order ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: Judgment delivered on 29 July 2005 Further order delivered on 23 August 2005 DELIVERED AT: Brisbane HEARING DATE: 13 May 2005 JUDGES: McPherson and Jerrard JJA and Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the order made ORDER: Orders for costs on both the appeal and cross-appeal not disturbed CATCHWORDS: PROCEDURE – COSTS – cross-appellant made a Calderbank offer of settlement of both the appeal and cross- appeal prior to trial that was not accepted by the cross- respondent – whether the cross-appellant was entitled to have the cross-respondent pay her costs PROCEDURE – COSTS – s 325 of the WorkCover Queensland Act 1996 (Qld) regulates costs orders where offers of settlement have been made – whether s 325 applies to appellate proceedings WorkCover Queensland Act 1996 (Qld), s 325 Calderbank v Calderbank [1976] Fam 93, cited Sheridan v Warrina Community Co-operative Ltd [2004] QCA 308; [2005] 1 Qd R 187, applied Tector v FAI General Insurance Company Limited [2000] QCA 426; [2001] 2 Qd R 463, cited COUNSEL: K N Wilson SC, with K Holyoak, for the appellant G W Diehm, with A Luchich, for the respondent -- 1 of 3 -- 2 SOLICITORS: Hopgood Ganim Lawyers for the appellant Gall Standfield & Smith for the respondent [1] McPHERSON JA: I agree with the order proposed by Jerrard JA disposing of the further submissions concerning costs in this appeal, and with his Honour’s reasons for doing so. [2] JERRARD JA: The Court gave judgment in this matter on 29 July 2005, dismissing the appeal by Mayne Nickless and the cross-appeal by Ms Calvert. The Court made costs orders on each of the appeal and cross-appeal. On the latter, the order was that Ms Calvert, the unsuccessful appellant on the cross-appeal, pay the costs of Mayne Nickless on that appeal assessed on the standard basis. Pursuant to leave granted on 29 July 2005 on Ms Calvert’s application, the Court has received written submissions from both parties, in which Ms Calvert argues that Mayne Nickless should be ordered to pay her costs of her unsuccessful cross-appeal. [3] The basis for that argument is that on 24 December 2004 Ms Calvert filed a cross- appeal, the day after Mayne Nickless had filed its appeal. Also on 24 December 2004 Ms Calvert offered to settle the appeal and cross-appeal on the basis that each appeal be dismissed by consent and that the parties bear their costs of both. That offer was left open until 7 January 2005; it was an offer of the kind commonly described as a “Calderbank” offer.1 That offer was not accepted. [4] Both parties accept that, consistently with the decision of this Court in Tector v FAI General Insurance Company Limited [2001] 2 Qd R 463, the regime established in Chapter 9 Part 5 of the Uniform Civil Procedure Rules does not apply to appeals. Ms Calvert nevertheless pressed as significant the fact of her Calderbank offer. [5] Assuming that reference to a Calderbank offer can be relevant to the outcome of a costs order in the discretion of this Court, Ms Calvert has not established circumstances for varying the order made. She lost the cross-appeal, and no evidence has been put before this Court as to the assessed costs on the appeal and cross-appeal respectively. While more time was taken on the appeal than on the cross-appeal, both were heard on the one day with oral and written submissions on each. On the cross-appeal, Mayne Nickless was represented by both senior and junior counsel; on the appeal Ms Calvert was represented by one (senior junior) counsel alone. The assessed costs Mayne Nickless may be entitled to on the cross- appeal could exceed the assessed costs it must pay on the appeal. Other matters [6] Mayne Nickless contended on its written submissions that in any event s 325 of the WorkCover Queensland Act 1996 prohibited this Court from making any order for costs, that section being, in its submission, legislation which provides otherwise than as in s 221 of the Supreme Court Act 1995. The effect of s 325 was recently considered by this Court in Sheridan v Warrina Community Co-operative Ltd [2005] 1 Qd R 187. [7] Section 325 relevantly provides: 1 Calderbank v Calderbank [1976] Fam 93 -- 2 of 3 -- 3 “325.(1) No order about costs, other than an order allowed under this section, is to be made by the court in the claimant’s proceeding. (2) If a party to the proceeding makes a written final 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 WorkCover 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 WorkCover final offer – an order that the worker pay WorkCover’s party and party costs from the day of the final offer. (3) If the award of damages is less than the claimant’s written final offer but more than WorkCover’s final offer, each party bears the party’s own costs.” [8] Mayne Nickless made the point that the parties had exchanged offers prior to the trial of the action, and the award of damages made by the learned trial judge fell between the final offers made to each other by Mayne Nickless and Ms Calvert. In consequence, the learned trial judge made no order as to costs of the trial, because s 325(3) applied. Mayne Nickless now submits that that section is equally applicable to the appeal, and that no order for costs should be made on either the appeal or the cross-appeal. [9] If s 325 has application on the appeal, it could only be in “the claimant’s proceeding”, as provided in s 325(1). That could only be the cross-appeal. So if the argument Mayne Nickless now advances as to the applicability of s 325 is correct, the only result would be that Mayne Nickless is disentitled to an order for costs on its successful defence of the cross-appeal. But in any event I disagree that s 325 could apply to appeal proceedings, such as this one, in which the appeals are dismissed. By its terms s 325 can only apply where a court awards damages to the worker; that much was clearly established in Sheridan. This Court did not award Ms Calvert damages. It was the learned trial judge who made an award of damages to Ms Calvert. This Court upheld that award, but was not the court which “later awards damages” to Ms Calvert within the meaning of s 325, after she had made a written final offer of settlement. Making that written final offer of settlement was a step she was required to take prior to the trial. [10] In any event, in my opinion the language of s 325 is inapplicable to appellate proceedings generally, not simply to those where, as here, the appellate proceedings are dismissed, to which it is certainly not applicable. I would not disturb either the order for costs on the appeal or the order on the cross-appeal. [11] ATKINSON J: I agree with the order proposed by Jerrard JA regarding costs in this appeal, and with his Honour’s reasons. -- 3 of 3 --