Sterling Law secures indemnity costs order against QBE

Background

For the last 4 years, we doggedly pursued a claim on behalf of a client who was kicked by a horse.

By the time our client saw a solicitor of our firm, he had been denied WorkCover because on review it was determined he was not a worker within section 11 of the Workers’ Compensation and Rehabilitation Act 2003. Things were looking very grim. It seemed that there was no way for our client to access compensation or any damages.

Our Legal Practitioner Director decided to instead pursue a damages claim under the Personal Injuries Proceedings Act 2002 (PIPA). Subsequently, at the PIPA compulsory conference, one lawyer for a defendant asserted that we had erred by not following the process under the Workers’ Compensation and Rehabilitation Act 2003 instead. All lawyers at the compulsory conference except our Legal Practitioner Director were in complete agreement that the claim had no merit, and our client only received offers of $nil under PIPA.

When we commenced proceedings, the defendants applied to strike out the claim on the grounds that we had not complied with the Workers’ Compensation and Rehabilitation Act 2003 and by pursuing the claim under PIPA we had selected the wrong statute. Our Legal Practitioner Director appeared sans Counsel against two barristers and successfully resisted this attempt to stop the claim in its tracks.

Barry Nilsson, solicitors for QBE Insurance and one of Brisbane’s top insurance firms, still gave us no chance. Neither did the other lawyers representing the defendants, including Counsel. Even a District Court Judge who is a silk highly knowledgeable in civil matters suggested that our client may have been an independent contractor and therefore no duty of care was owed to him.

Subsequently, the matter proceeded to trial and in one of the greatest upsets in Queensland legal history, our client was 90% successful on liability with damages awarded. No appeal has been filed against this decision. Argument about costs immediately ensued and the decision on costs was reserved so that QBE’s lawyers could make further submissions on costs.

Around the same time, Barry Nilsson changed their logo. We are uncertain whether this was related to this case in any way.

Costs

The remaining issue to be determined was the costs of the proceeding.

On 23 April 2021, we had offered to settle for $130,000 exclusive of the WorkCover refund but inclusive of costs and all other statutory refunds.

On 2 November 2021, we offered to settle for $150,000 inclusive of costs and all statutory refunds.

Neither offer was accepted by any of the defendants.

360 Costs if offer by plaintiff
(1) If—
(a) the plaintiff makes an offer that is not accepted by the defendant and the plaintiff obtains an order no less favourable than the offer; and
(b) the court is satisfied that the plaintiff was at all material times willing and able to carry out what was proposed in the offer;
the court must order the defendant to pay the plaintiff’s costs calculated on the indemnity basis unless the defendant shows another order for costs is appropriate in the circumstances.
(2) If the plaintiff makes more than 1 offer satisfying subrule (1), the first of those offers is taken to be the only offer for this rule.

In MT Associates Pty Ltd v Aqua-Max Pty Ltd (No 3) [2000] VSC 163, Gillard J said that:

“Any offer made in litigation should be carefully considered and a party and his solicitor ignores or rejects the offer at his peril.”

QBE’s lawyers argued our offers were not valid because they could not know the amount of our costs, and relied on Pollock v Thiess Pty Ltd & Ors (No 3) [2014] QSC 121 in which McMeekin J said that “the validity of an offer and its purpose and effect can be entirely obscure to the offeree”.

However, in the same case, McMeekin J wrote that:

“It has long been recognised that the awarding of standard costs leaves a party out of pocket: Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 4. The discrepancy now is much greater than it was 20 years ago. Where a plaintiff has reasonably sought to avoid litigation entirely, and so avoid this imposition on him which significantly decreases his award, but has been frustrated by the attitude of those who have injured him, then I am not persuaded it is just to assert that it is the plaintiff who must do the explaining and justifying.”

Once again, our client was victorious when the District Court ordered him indemnity costs of the entire Court proceedings save for an application to set aside judgment.

This is not the first time our Legal Practitioner Director achieved an indemnity costs order in relation to this claim. He got indemnity costs against one of the defendants for failing to comply with his obligations under PIPA. We have a demonstrated track record of getting indemnity costs against parties (including against lawyers), perhaps more often than standard costs, even though indemnity costs are considered exceptional.

This post is about telling one of the great legal stories in the Sunshine State in recent years. This post is not an advertisement for personal injury legal services. These days, most of our work is in family law. Having said that, this post does demonstrate our proven ability to secure indemnity costs in our clients’ favours, no matter the type of litigation. Also, this is not the first time we have been written off, but then relentlessly pressed on and triumphed. And it probably won’t be the last.

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