Certification of Two Counsel and Overseas issues in respect to Costs Offers (Exchange rates)

Boskv Burgess & QBE Insurance (Australia) Limited [2022] QSC 79

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS –

PARTICULAR ITEMS – COUNSEL FEES – SENIOR OR QUEEN’S COUNSEL –

OFFER OF COMPROMISE OR OFFER TO SETTLE OR CONSENT TO JUDGMENT PURSUANT TO RULES – GENERALLY –

The Plaintiff suffered injuries including a partial leg amputation. The Defendant was driving at Noosa when she then left the road and collided with the Plaintiff (German tourist) who was a pedestrian. Liability was admitted however quantum was disputed.

The Plaintiff applied to the court under the slip rule to correct alleged errors and damages were increased. Also considered at the hearing was the question as to costs. The complicating factor in the proceedings was that as the Plaintiff resides in Germany, some damages were calculated in Euros where other calculations were made in AUD. The Plaintiff also applied for Senior and Junior Counse noting the much of the evidence was from Germany.

Offers to settle Costs.

The Court referred to rule 361 in respect to offers to settle [97]. The insurer Second Defendant made one offer to settle in 2017 which was repeated in 2020. The complicating factor is the question of the change in the exchange rates between these dates. [95]. His Honour considered that the change in the exchange rate made no material difference in respect to the quantum of the offers noting the difference between judgement costs and offers to settle due to the large difference between the damages awarded and the offers to settle. [99]

Accordingly, when applying rule 361 His Honour ordered that the Defendant pay the Defendant’s costs on a standard basis up to the offer to settle on 07 December 2017 and the Plaintiff pay the Second Defendant’s costs on a standard basis after this date.

Two Counsel

The Plaintiff contended that it was entitled to two Counsel. The Second Defendant argued that Liability was always admitted, most heads of damage were agreed by trial, there was no particular point of principle or unsettled law involved and there was nothing particularly difficult about any aspect of the case.” [101]

His Honour noted that notwithstanding that the that the facts did not seem particularly difficult, there was evidence from overseas. His Honour determined that due to the experience of Senior Counsel, the matter may otherwise have been more difficult and protracted. [103] Accordingly it was accepted that the Plaintiff should have the costs of two Counsel (Senior and Junior Counsel). [102, 104]