DISTRICT COURT OF QUEENSLAND

CITATION:	Walker v State of Queensland (No. 2) [2023] QDC 1	
PARTIES:	RICHARD SCOTT WALKER
(plaintiff)
v
STATE OF QUEENSLAND
(defendant)	
FILE NO:	1135/18	
DIVISION:	Civil	
PROCEEDING:	Costs Hearing	
ORIGINATING COURT:
	Brisbane District Court	
DELIVERED ON:	19 January 2023	
DELIVERED AT:	Brisbane	
HEARING DATE:	Written submissions received 29 August 2022, 13 September 2022, 29 September 2022, 5 December 2022, 9 December 2022 and 12 December 2022.	
JUDGE:	Byrne KC DCJ	
ORDER:	1.	The defendant pay the plaintiff’s costs, on the standard basis, up to and including 9 April 2019, with such costs to be assessed by reference to the District Court scale.
2.	Subject to Order 3, the plaintiff pay the defendant’s costs, on the standard basis, from 10 April 2019, with such costs to be assessed by reference to the District Court scale.
3.	There be no order for the costs of the assessment hearing heard 12-14 April 2022.	
CATCHWORDS:	COSTS – ASSESSMENT OF COSTS – TORTS – FALSE IMPRISONMENT – where a jury in the District Court found for the defendant in claims of malicious prosecution and false imprisonment – where the Court of Appeal allowed the plaintiff’s appeal on the false imprisonment claim only, remitted matter to the District Court for an assessment of damages and reserved the costs of the first trial – where the plaintiff was awarded damages totalling $30,000, plus interest at the assessment hearing for false imprisonment – where the plaintiff was served with an offer to settle on 9 April 2019 which included terms that could not be the subject of a court order – where rule 361 UCPR is engaged - where the defendant submits it should pay the plaintiff’s costs on the Magistrates Court scale to 9 April 2019 – where the defendant further submits that the plaintiff should pay the defendant’s costs on the standard basis and assessed on the District Court scale after 9 April 2019 – whether the plaintiff obtained an order that is more favourable to him than the offer – whether another order for costs is appropriate under r. 361(2) UCPR.	
LEGISLATION:	Civil Proceedings Act 2011 (Qld)
District Court Practice Direction
Uniform Civil Procedure Rules 1999 (Qld)	
CASES:

	Balnaves v Smith [2012] QSC 408
Built Qld Pty Ltd v Pro-Invest Australian Hospitality Opportunity (ST) Pty Ltd (No. 3) [2022] QSC 62
Bulsey and State of Queensland [2016] QCA 158
Fairfield Services Pty Ltd (in liq) v Leggett (2020) 5 QR 50
McKay v Armstrong & Anor [2020] QDC 127
Nationwide News Pty Ltd v Weatherup [2017] QCA 70
Norfolk Estates Pty Ltd v Cardno (Qld) Pty Ltd (No. 3) [2013] QDC 308
Timms v Clift [1998] 2 Qd R 100
Virgtel Limited v Zabusky (No. 2) [2009] 2 Qd.R. 293
Walker v State of Queensland [2022] QDC 168
Walker v State of Queensland [2020] QCA 137
Waltz Construction Co Pty Ltd v ASP SHI Capital Management (A Firm) [2002] QCA 155	
COUNSEL:	Mr M. de Waard for the plaintiff.
Mr. D. Favell for the defendant.	
SOLICITORS:	Robinson Locke Litigation Lawyers for the plaintiff.
Crown Solicitor for the defendant.	

Background
[1]	This costs judgment is consequential to a series of hearings resulting in an assessment of damages totalling $30,000.00, plus interest, in favour of the plaintiff in respect of his claim for false imprisonment.  Some of the history of the matter is briefly outlined in my earlier judgment.  It is now relevant to note that the Court of Appeal reserved the costs of the first trial, that is in respect of both claims of malicious prosecution and of false imprisonment.
[2]	These reasons should be read together with the earlier published reasons in the litigation.
Further facts
[3]	The claims were commenced on 28 March 2018 seeking damages totalling $248,470.00, comprising $128,470.00 for the malicious prosecution claim and the balance for the false imprisonment claim.
[4]	Following an unsuccessful mediation, the defendant made a formal offer to settle the whole of the proceedings on the basis that:
1.	The defendant would pay the plaintiff $57,000.00, including interest.
2.	The defendant would pay the plaintiff’s costs on the standard basis.
3.	The parties enter into a Deed of Settlement, which contained a confidentiality clause, a clause allowing the Deed to be pleaded as a bar in any further proceedings arising out of the facts and circumstances the subject of the claims and a clause specifically recognising the non-admission of liability by each party.
[5]	The offer was made under Chapter 9, Part 5 of the UCPR and lapsed about four months prior to the first trial, namely on 23 April 2019.
[6]	On 7 September 2022 the orders in the earlier judgment were amended by consent in the following terms:
1.	With respect to paragraph 2 of the orders made on 5 August 2022, the interest, from 10 September 2014 up to and inclusive of 5 August 2022, is calculated in accordance with paragraph 3 of the District Court Practice Direction 6 of 2013, the amount being $12,485.62. 
2.	The defendant is to pay interest pursuant to s 59 of the Civil Proceedings Act 2011, in the sum of $5.63 per day (calculated in accordance with paragraph 4 of the District Court Practice Direction 6 of 2013) from 6 August 2022 until payment of the damages awarded.
[7]	The result is a total award of $42,485.62, including interest, with a small continuing accrual until the time of payment. There is no suggestion that the damages and interest have been paid to date.
The parties’ submissions
[8]	The plaintiff initially submitted that he should receive his costs of the proceeding on the standard basis assessed on the District Court scale.
[9]	The defendant’s submissions were broadly to the effect that the failure to accept a more advantageous offer than was the end result means that r 361(2) of the UCPR should be applied, with the result that costs are “split” from the date of service of the offer. It is submitted there is no reason to otherwise order, as contemplated by r 361(2).  
[10]	Further, it is argued that because the damages awarded were substantially below the monetary limit of the Magistrates Court, r 697(2) of the UCPR should be applied so that the plaintiff should receive his costs on the Magistrates Court scale. 
[11]	The consequence of the defendant’s submissions is that the defendant should pay the plaintiff’s costs to 9 April 2019 on the standard basis and assessed on the Magistrates Court scale, and that the plaintiff should pay the defendant’s costs thereafter on the standard basis and assessed on the District Court scale.
[12]	In reply, the plaintiff submitted that the defendant’s offer was not more favourable than the eventual outcome because the offer required acceptance of the earlier outlined restrictive clauses.  
[13]	Secondly it is submitted that weight should be given to the fact that the plaintiff succeeded in an action for unliquidated damages as opposed to an action for liquidated damages or breach of contract where the likely award would have been more safely assessed in advance.
[14]	Thirdly, it is submitted that it would be unjust for the plaintiff’s success at trial to be completely eroded by an adverse costs order where he has been the victim of an “intentional tort”.
[15]	Due to each of those matters, it is submitted that, in the circumstances, the rejection of the offer is not sufficient to displace the usual rule that costs follow the event, with reliance placed on McKay v Armstrong & Anor to justify that conclusion.
[16]	The plaintiff submits, somewhat circularly, that the only order that is appropriate other than that contemplated by r 361(2) of the UCPR is the order initially sought, namely that the defendant pay the plaintiff’s costs on the standard basis.  
[17]	Further, while it is accepted that the damages awarded fell under the Magistrates Court jurisdictional limit, the proceedings were properly commenced in the District Court and that the assessment of damages was heard in the District Court as a consequence of the Court of Appeal’s order. Accordingly, it is submitted that it is not an appropriate occasion for the application of r 697(2) of the UCPR. 
[18]	On 21 November 2022 I invited further written submissions from the parties as to whether another order was appropriate under r 361(2) of the UCPR, based on a specific factual scenario. A number of the plaintiff’s submissions in response to that invitation were framed in a manner that sought to make them broadly responsive to the scenario raised, but in reality were an effort to make further submissions, and different to those earlier made, on the issue of why another order was appropriate under that rule. The plaintiff had earlier been given the opportunity to make whatever submissions he saw fit on the topic, and had made those submissions. The latterly received submissions contain assertions about the effect of the amendment of pleadings prior to the first trial that are not obviously supported by evidence, nor are they necessarily obvious on the state of the filed material. In so far as they were not responsive to the specific issue about which further submissions were invited, they are ignored, consistent with long standing convention.
Consideration
[19]	The applicability of r. 361(1) requires satisfaction as to two matters, namely that the plaintiff has not obtained an order more favourable than the offer and that the defendant was willing and able to carry out what was proposed in the offer.
[20]	As to the latter aspect, the defendant’s solicitor has deposed to matters which allow satisfaction of that matter. Issue has not been joined on this, and I am satisfied this has been established.
[21]	As for the first aspect, the defendant’s offer was to settle the proceedings in the terms earlier mentioned.  It did not attribute certain monetary amounts or other conditions to the separate claims of malicious prosecution and false imprisonment, and neither did it need to in order to qualify as an offer under the rules.  Insofar as the current consideration requires comparison of the monetary component of the offer with the judgment amount, it is a comparison with the whole of the monetary offer and not some proportion of it.
[22]	This Court is entitled to consider the effect of terms in the offer which could not be the subject of a judgment, including, for present purposes, the effect of the confidentiality clause and the clause effecting a non-attribution of liability. When matters of this nature fall for consideration, “it is a matter for the court’s judgment” whether the offer is more favourable to the plaintiff or not.  It requires a qualitative assessment of the comparative positions.
[23]	I accept that the plaintiff wanted a public apology and recognition of wrongdoing by the police officers involved. The former has never eventuated, but both would have been frustrated by entering into the proposed Deed of Settlement.  However, the value in the recognition of wrongdoing is limited, for these purposes, to the commission of the false imprisonment for just over one hour and not to the commission of the asserted malicious prosecution which, in my view, would have been the more serious of the two claims had it been proven.
[24]	In all of the circumstances, I consider that the plaintiff did not obtain an order that is more favourable to him than the judgment.  
[25]	The total monetary award, including interest, was just over $42,000.00.  That is, a shortfall of just under $15,000.00 on the monetary component of the offer.  While I do not attempt to ascribe a precise monetary value to the recognition of liability by the police officers and the plaintiff’s ability to refer to that, the comparatively limited nature of those things in the circumstances of this matter leaves me satisfied that r 361(1)(a) of the UCPR must be determined in favour of the defendant.  It is true that in other circumstances non-monetary considerations might supplement the monetary award to effectively increase its value in an overall qualitative sense, but each case must be determined on its own features and the inherent nature of the qualitative assessment means that reasonable minds may legitimately disagree.
[26]	That raises the issue of whether “another order for costs is appropriate”, as provided for by r 361(2) of the UCPR.
[27]	The parties are agreed that all evidence necessary for the assessment of damages was adduced at the first trial.  Presumably, there was no verdict taken as to the amount to be awarded because the jury’s answers to the questions posed meant that liability had not been proven. 
[28]	The hearing to assess damages conducted before me was necessitated because of erroneous directions given to the jury by the first trial judge. Those directions were apparently influenced by submissions by counsel for the defendant. While it is true that the plaintiff’s counsel ultimately approached the matter on an incorrect footing, it is notable that he initially posed the correct question for the jury. It seems his change of position was in the face of resistance to acceptance of his initial submissions. His change of stance was unfortunate, but understandable.
[29]	It has been often noted that the exercise of discretion in costs orders is truly discretionary. The object is for the Court to arrive at the order it considers to be just in the circumstances of the matter before it. 
[30]	It seems to me that it would be fundamentally unfair to, in effect, require the plaintiff to pay the defendant’s costs of two assessment hearings when he was not the cause of the error which necessitated the second hearing. Where the Court of Appeal has sufficiently identified the cause of the error necessitating a further hearing, I consider it appropriate to recognise that in the costs ordered. On the other hand, the bearing of some costs of a further hearing is the consequence of the rejection of the earlier offer, and of ultimately adopting an incorrect position in the face of resistance to the initial correct submissions. In my view, it is appropriate to order that there be no order as to the costs of and incidental to the hearing before me. In other words, each party will bear their own costs of that hearing.
[31]	The issue then is the scale that the plaintiff’s costs should be assessed against.  I consider that they should be ordered on the District Court scale.
[32]	The proceedings were appropriately brought in the District Court in the first instance given the amount of the total claim.  Further, the plaintiff elected to conduct the trial before a jury, which of course could not occur in the lower court.
[33]	The Court of Appeal “remitted” the proceeding for an assessment of damages on the false imprisonment claim.  That kept the election for trial by jury intact, in the sense of the trial being for the assessment of damages.  Therefore, the trial could not have been conducted in the Magistrates Court while that election remained on foot. It was not until the first day of the assessment hearing that the parties indicated, after questioning by me, that the trial by jury was not required. It was clear to me that neither party had turned their mind to that issue. It was not an abandonment by the plaintiff of his initial request for trial by jury that evidenced an acceptance that the matter should not have been heard by a jury, as contended for by the defendant in its initial costs submissions.
[34]	It is in that context that the defendant’s submission that r 697(2) of the UCPR should be applied so that the costs payable to the plaintiff would be assessed on the Magistrates Court scale as the provision provides, or whether it is appropriate to order otherwise. The onus falls on the plaintiff to persuade the Court that “another order” should be made.
[35]	Rule 697 does not identify what factors might justify “another order” and so all factors bearing on the appropriateness of such an order are relevant.
[36]	The quantum of damages claimed required that the proceedings be in this Court. The ultimate award of damages in the lower jurisdictional amount creates a starting point for the present enquiry and is not a complete answer to it. 
[37]	While the outcome has resulted in a judgment amount well below the Magistrates Court monetary limit, I accept that the assessment was not straightforward, particularly in light of the finding of non-liability for what I consider would have been the more serious of the claims, that of malicious prosecution, which factually overlapped with the claim of false imprisonment.  It does not seem to me that the quantum claimed was, at the time the proceedings were commenced, fanciful nor was it designed to avoid a hearing in the Magistrates Court.  
[38]	On the other hand, the issues did not involve special complexity such that this jurisdiction should have been preferred over the lower jurisdiction. Also, the election for trial by jury is a relevant feature, but does not necessarily provide a complete answer to the issue.
[39]	It is not suggested that the defendant at any time suggested to the plaintiff the matter should be determined in the Magistrates Court. While it is not incumbent on the defendant to make such a suggestion, the failure to do so and the therefore presumed willingness to litigate in the higher jurisdiction is a relevant factor. In the circumstances of this matter, it is also relevant to note that the defendant apparently did not suggest that the remittal from the Court of Appeal should be to the Magistrates Court.
[40]	In the circumstances, and particularly where the proceedings were brought in this jurisdiction in good faith, where the remittal was back to this Court without objection by the defendant, and where it had not been suggested in the two years between the order for remittal and the assessment hearing that the matter should be heard in the lower jurisdiction, I consider the appropriate order is that so much of the plaintiff’s costs which are payable by the defendant be paid on the District Court scale.
Orders
1.	The defendant pay the plaintiff’s costs, on the standard basis, up to and including 9 April 2019, with such costs to be assessed by reference to the District Court scale.
2.	Subject to Order 3, the plaintiff pay the defendant’s costs, on the standard basis, from 10 April 2019, with such costs to be assessed by reference to the District Court scale.
3.	There be no order for the costs of the assessment hearing heard 12-14 April 2022.