Grice v State of Qld [2005] QCA 298

SUPREME COURT OF QUEENSLAND

CITATION: Grice v State of Qld [2005] QCA 298

PARTIES: JEAN GRICE (plaintiff/respondent) v STATE OF QUEENSLAND (defendant/appellant)

FILE NO/S: Appeal No 10818 of 2004 / DC No 2899 of 2003

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal - Further Order

ORIGINATING COURT: District Court at Brisbane

DELIVERED ON: Judgment delivered 5 August 2005 / Further Order delivered 19 August 2005

DELIVERED AT: Brisbane

HEARING DATE: 3 June 2005

JUDGES: McMurdo P, McPherson and Williams JJA / Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER: The appellant is to pay the respondent's costs of the appeal to be assessed on an indemnity basis

CATCHWORDS: PROCEDURE - COSTS - DEPARTING FROM THE GENERAL RULE - ORDER FOR COSTS ON INDEMNITY BASIS - respondent made offer to settle to appellant before trial - offer not accepted by appellant - respondent obtained judgment in her favour after trial for amount greater than offer - appellant appealed - respondent attempted to compromise appeal by offering to accept substantially less than the judgment sum - offer not made under Ch 9 Pt 5 of the Uniform Civil Procedure Rules 1999 (Qld) - appellant proceeded with appeal despite offer to settle - appeal dismissed - indemnity costs ordinarily only awarded where there are circumstances warranting a departure from usual order assessing costs on the standard basis - appeal concerned amount of about $33,000 - point raised on appeal not a matter of high principle or wide application but concerned only causes of action arising in a restricted time period - whether in the circumstances the respondent should be awarded costs on an indemnity basis / Personal Injuries Proceedings Act 2002 (Qld), s 39 / Uniform Civil Procedure Rules 1999 (Qld), r 704 / Calderbank v Calderbank [1976] Fam 93, cited / Deepcliffe Pty Ltd & Anor v The Council of the City of Gold Coast & Anor [2001] QCA 396; Appeal No 10673 of 2000, 25 September 2001, cited / Di Carlo v Dubois & Ors [2002] QCA 225; Appeal No 9805 of 2001, 25 June 2002, applied / Tamwoy v Solomon [1996] 2 Qd R 93, cited / Tector v FAI General Insurance Company Ltd [2000] QCA 426; [2001] 2 Qd R 46

COUNSEL: R J Douglas SC for the appellant / S C Williams QC, with J P Kimmins, for the respondent

SOLICITORS: C W Lohe, Crown Solicitor for the appellant / Carew Lawyers for the respondent

McMURDO P: This Court delivered its reasons for judgment in this appeal on 5 August 2005. The appeal was dismissed but, because the appellant asked for the opportunity to make submissions as to the appropriate order for costs of the appeal and the original trial, the parties were given seven days in which to do so. The parties have made submissions only as to the order for costs of the appeal.

The relevant history of the matter is as follows. On 14 July 2003 the respondent, Ms Grice, delivered a mandatory final offer under s 39 Personal Injuries Proceedings Act 2002 (Qld) ("the Act") in the amount of $35,000 with costs as prescribed by the Act in the sum of $2,500. The appellant did not accept that offer and the matter proceeded to trial in the District Court. On 25 November 2004 the respondent, Ms Grice, obtained judgment in her favour in the amount of $60,825.25 together with costs to be assessed on an indemnity basis. The appellant appealed in respect of that portion of the judgment relating to the damages for gratuitous services, an amount of about $33,000. On 28 January 2005, Ms Grice's lawyers wrote to the appellant's lawyers in these terms:

"We record that our client has attempted to compromise the appeal by offering to accept substantially less than the judgment sum, but that your Counsel has advised that the offer is rejected, that your client does not wish to attempt to resolve this matter and that it wishes to have the Court of Appeal determine the correct construction of s 54(2) of the Personal Injuries Proceedings Act. … We put you on notice that irrespective of the outcome of the appeal, we will be seeking an order that your client pay the costs of the appeal."

By letter of 4 February 2005 the appellant's solicitors confirmed they would proceed with the appeal despite Ms Grice's offer to settle.

Ms Grice asks for costs of the appeal on an indemnity basis, primarily because of her attempt to settle the appeal, which concerned a modest amount, for less than the judgment sum: cf Calderbank v Calderbank.¹ The appellant resists that application and argues that the standard costs order is appropriate.

Ms Grice's offer to settle was not one made under Ch 9 Pt 5 of the Uniform Civil Procedure Rules 1999 (Qld) ("UCPR"): see Tamwoy v Solomon;² Tector v FAI General Insurance Company Ltd;³ Deepcliffe Pty Ltd & Anor v The Council of the City of Gold Coast & Anor.⁴

Under UCPR r 704 a court may order costs to be assessed on an indemnity basis. This would ordinarily be done only when there are circumstances warranting a departure from the usual order assessing costs on the standard basis. Before ordering costs on an indemnity basis, a court requires some evidence of unusual circumstances or unreasonable conduct: Di Carlo v Dubois & Ors.⁵

Ms Grice had the benefit of a judgment in her favour in the District Court. The appellant decided to continue with its appeal despite Ms Grice's patently reasonable offer to compromise the action pending appeal, apparently because it wanted this Court to interpret s 54 of the Act. Ordinarily a respondent's Calderbank offer to settle an appeal which is subsequently unsuccessful will not be sufficient on its own to warrant an award to the respondent of indemnity costs of the appeal. In this case there are, however, two features which suggest that the appellant was unreasonable in pursuing the appeal in the light of Ms Grice's Calderbank offer. First, the appeal was from a District Court judgment and it concerned a modest amount of about $33,000; usually such an appeal would require leave to appeal under s 118 District Court of Queensland Act 1967 (Qld). Second, and of more significance, the point raised was not a matter of high principle and wide application; on the contrary it concerns only causes of action arising before 9 April 2003 and not decided prior to 18 June 2002. The appellant, having chosen to pursue its right of appeal over a small amount and on a point of very limited application despite Ms Grice's patently reasonable offer to compromise the action pending appeal, ought now fully compensate Ms Grice for the further expense to which she has unreasonably been put. In this unusual combination of circumstances Ms Grice should be awarded the costs of the appeal on an indemnity basis.

Further order:

The appellant is to pay the respondent's costs of the appeal to be assessed on an indemnity basis.

McPHERSON JA: I agree with the reasons of the President for the order which her Honour proposes here.

WILLIAMS JA: For the reasons given by the President the respondent should recover costs of the appeal assessed on an indemnity basis.

Footnotes

1. [1976] Fam 93. ↩

2. [1996] 2 Qd R 93. ↩

3. [2001] 2 Qd R 463. ↩

4. [2001] QCA 396; Appeal No 10673 of 2000, 25 September 2001. ↩

5. [2002] QCA 225; Appeal No 9805 of 2001, 25 June 2002, White J, Williams JA and Wilson J agreeing, [35] - [38]. See also Tector, 464 and Deepcliffe, [5]. ↩