SUPREME COURT OF QUEENSLAND

CITATION:	Metro North Hospital and Health Service v Stewart [2024] QCA 226	
PARTIES:	METRO NORTH HOSPITAL AND HEALTH SERVICE
(ABN 184 996 277 942)
(appellant)
v
MICHAEL STEWART by his litigation guardian CAROL SCHWARZMAN
(respondent)	
FILE NO/S:	Appeal No 7530 of 2024
SC No 4665 of 2024	
DIVISION:	Court of Appeal	
PROCEEDING:	General Civil Appeal	
ORIGINATING COURT:	
Supreme Court at Brisbane – [2024] QSC 95 (Cooper J)	
DELIVERED ON:	15 November 2024	
DELIVERED AT:	Brisbane	
HEARING DATE:	23 August 2024	
JUDGES:	Mullins P and Boddice JA and Ryan J	
ORDER:	The appeal is dismissed with costs.	
CATCHWORDS:	APPEAL AND NEW TRIAL – PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – OFFERS OF COMPROMISE, PAYMENTS INTO COURT AND SETTLEMENTS – OFFER OF COMPROMISE OR OFFER TO SETTLE OR CONSENT TO JUDGMENT PURSUANT TO RULES – WHAT CONSTITUTES VALID OFFER – where the appellant made an offer to the respondent to settle primary damages, with “reasonable fund management and administration fees to be agreed following resolution of primary damages” – where the respondent expressed the offer as having been made pursuant to r 361 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) – where the primary judge found the offer did not enliven the operation of r 361 because it was not an offer to settle the whole of the respondent’s claim and therefore did not comply with r 353 – whether the primary judge erred in finding that the meaning of “offer” in r 353(1) was limited to only offers capable of settling the whole of the claim – whether primary judge erred in finding that the offer did not comply with r 353
Uniform Civil Procedure Rules 1999 (Qld), r 353
Wiggins Island Coal Export Terminal Pty Limited v Civil Mining and Construction Pty Ltd (2021) 7 QR 1; [2021] QCA 8, cited	
COUNSEL:	C C Heyworth-Smith KC, with K E Slack and M A Eade, for the appellant
B W Walker SC and G R Mullins KC, with J J Liddle, for the respondent	
SOLICITORS:	Corrs Chambers Westgarth for the appellant
Maurice Blackburn for the respondent	
[1]	MULLINS P:  I agree with Boddice JA.
[2]	BODDICE JA:  On 20 March 2024, the primary judge gave judgment against the appellant (Metro) in favour of the respondent (Mr Stewart) for damages in the sum of $2,190,505.48, plus management fees to be assessed.
[3]	On 22 May 2024, the primary judge ordered that Metro pay Mr Stewart’s costs of the proceeding up to and including 17 July 2023 and that there be no order for costs after that date.
[4]	On 7 June 2024, the primary judge granted Metro leave to appeal the order that there be no order as to costs after 17 July 2023.
[5]	Metro submits that the primary judge erred in finding that the meaning of “offer” in r 353(1) of the Uniform Civil Procedure Rules (UCPR) was limited to only offers capable of settling the whole of the claim.  In the alternative, Metro submits that the primary judge erred in finding that its offer did not comply with r 353.
Legislative regime
[6]	Relevantly, the UCPR provides:
“353	If offer available
(1)	A party to a proceeding may serve on another party to the proceeding an offer to settle 1 or more of the claims in the proceeding on the conditions specified in the offer.
(2)	A party may serve more than one offer.
(3)	An offer must be in writing and must contain a statement that it is made under this part.
…
361	Costs if offer by defendant—order obtained by plaintiff
(1)	This rule applies if—
(a)	the defendant makes an offer that is not accepted by the plaintiff; and
(b)	the plaintiff obtains an order that is less favourable to the plaintiff than the offer; and
(c)	the court is satisfied that the defendant was at all material times willing and able to carry out what was proposed in the offer.
(2)	Unless a party shows another order for costs is appropriate in the circumstances—
(a)	the court must—
(i)	order the defendant to pay the plaintiff’s costs, calculated on the standard basis, up to and including the day of service of the offer; and
(ii)	order the plaintiff to pay the defendant’s costs, calculated on the indemnity basis, after the day of service of the offer; and
(b)	the plaintiff is not entitled to any costs after the day of service of the offer.
(3)	However, if the defendant’s offer is served on the first day or a later day of the trial or hearing of the proceeding then, unless the court otherwise orders—
(a)	the plaintiff is entitled to costs on the standard basis to the opening of the court on the next day of the trial; and
(b)	the defendant is entitled to the defendant’s costs incurred after the opening of the court on that day on the indemnity basis.”
Offer
[7]	Metro’s offer, made on 17 July 2023, was in the following terms:
“1.	TAKE NOTICE that, subject only to sanction, [Metro] HEREBY OFFERS to pay to [Mr Stewart] in full and final satisfaction of its liability to [Mr Stewart] for the claim:
(a)	$3,000,000 on account of primary damages inclusive of interest and statutory refunds;
(b)	[Mr Stewart’s] reasonable fund management and administration fees to be agreed following resolution of primary damages; and
(c)	[Mr Stewart’s] standard costs of and incidental to the claim including the application for sanction to be agreed, or failing agreement to be assessed according to the Uniform Civil Procedure Rules 1999 (Qld) (UCPR).
2.	This offer is made in accordance with the provisions of Chapter 9 Part 5 of the UCPR and is open for acceptance for 14 days after the date of service hereof but shall then lapse.
3.	This offer may be accepted only by serving a Notice of Acceptance on the solicitors for [Metro], Corrs Chambers Westgarth.”
Primary decision
[8]	The primary judge found; that to be compliant, an offer under r 353 may not offer to settle part of a cause of action or claim for relief; that damages for management fees were one component of the damages claimed to arise by reason of Mr Stewart’s single claim for damages for negligence; and that providing for management fees to be dealt with separately by means of further agreement between the parties, was not an offer to settle for the purposes of r 353.  As such, r 361 was not enlivened and there was no obligation to order that Mr Stewart pay Metro’s costs on an indemnity basis after the date of that offer.
Consideration
[9]	The usual principles of statutory construction are to be applied when construing the UCPR.  Those principles require consideration of the context, purpose and policy of the legislative provision, with the preferred construction to be one that produces consistency and fairness when regard is had to the legislation as a whole.  Purpose and policy are to be deduced and understood from the text and structure of the legislation, with relevant consideration, where necessary, of secondary material.
[10]	Adopting those principles, the following observations are relevant.
[11]	First, rr 353 and 361 are part of rules enacted for the purposes of encouraging the just and expeditious determination of litigation, including resolution of disputes without a court hearing.
[12]	Second, the UCPR’s procedures for the resolution of disputes are accompanied by incentives in that offers of compromise, which are not accepted by a party who obtains an order that is less favourable than the offer, trigger favourable costs orders.
[13]	Third, the words “A party to a proceeding may serve on another party to the proceeding an offer to settle 1 or more of the claims in the proceeding on the condition specified in the offer” in r 353, are unambiguous.  An offer to settle must relate to “the claims in the proceeding” (my emphasis).  A claim is a cause of action or claim for relief.
[14]	Fourth, a claim for damages for negligence is one cause of action.  That claim, in accordance with r 150 UCPR, is particularised under heads of damage.  However, each head of damage is not itself a separate claim in the proceeding.
[15]	An offer to settle some heads of damage, in a claim for damages for negligence, with others to be subject to further agreement, is an offer to settle only part of the cause of action.  Such an offer is not an offer to settle the claim in the proceeding, and does not comply with r 353.
[16]	That conclusion gives effect to the purpose of the rule, in the context of the UCPR.  It is also consistent with the legislative intention.
[17]	Mr Stewart had one claim, damages for negligence.  Metro understood Mr Stewart’s claim to be one claim.  That is apparent from the terms of its offer, which was “in full and final satisfaction of its liability … for the claim”.
[18]	That offer was not, however, an offer to settle the claim made by Mr Stewart.  The specified sum was in respect of “primary damages, inclusive of interest and statutory refunds”.  Reasonable fund management administration fees were to be agreed “following resolution of primary damages”.
[19]	Metro submitted that if its offer had made no reference to management fees, the offer would have complied with r 353.  However, any compliance would arise because the deletion of any reference to management fees would mean the offer was an offer to settle Mr Stewart’s claim.
[20]	Metro further submitted that Mr Stewart’s own offer to settle proceeded on the same basis.  However, the interpretation of r 353 is not to be determined by whether another party also failed to deliver an offer that was compliant with r 353.
[21]	In any event, Mr Stewart’s offer was not in the same terms.  His offer, made on 11 October 2023, contained the following terms:
“[Mr Stewart] hereby offers to settle this action pursuant to Part 5 of Chapter 9 of the Uniform Civil Procedure Rules on the following terms:
1.	[Metro] pays to [Mr Stewart] the sum of $4,900,000.00 (four million and nine hundred thousand dollars) plus reasonable funds management and administration fees to be agreed or assessed, by way of damages, inclusive of interest, plus standard legal costs, including the costs of the sanction of the settlement required by s 59 of the Public Trustee Act 1978, to be agreed or assessed.
2.	[Mr Stewart] files a Notice of Discontinuance in respect of these proceedings on payment of the monies in 1 above.
This Offer of Settlement shall remain open for acceptance for a period of fourteen (14) days from the date of service, after which it shall lapse.”
[22]	Mr Stewart’s offer did not leave resolution of the funds management administration fees to further determination after the resolution of “his primary damages”.  His offer provided a mechanism for a determination of those fees, as part of a settlement sum “by way of damages”.
Conclusion
[23]	No error has been established in the reasons or order made by the primary judge.
Order
[24]	I would order:
1.	The appeal be dismissed, with costs.
[25]	RYAN J:  I agree with Boddice JA.