Aitken v Suncorp Metway Insurance Ltd

[2007] QSC 311

SUPREME COURT OF QUEENSLAND

CITATION:

Aitken v Suncorp Metway Insurance Ltd [2007] QSC 311

PARTIES:

SHEM AITKEN
(applicant)
v
SUNCORP METWAY INSURANCE LIMTED
(respondent)

FILE NO/S:

BS 5874 of 2007

DIVISION:

Trial Division

PROCEEDING:

Originating Application – Further Order

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

Judgment delivered 12 October 2007

Further Order delivered 2 November 2007

DELIVERED AT:

Brisbane

HEARING DATE:

Written Submissions

JUDGE:

Mackenzie J

ORDER:

Order in terms of the draft initialled by me and placed with the papers

CATCHWORDS:

PROCEDURE – COSTS – INTERLOCUTORY PROCEEDINGS – where applicant successful in obtaining leave to commence proceedings outside limitation period – where delay caused by applicant’s solicitor – whether respondent should bear the costs of resisting the application

Motor Accident Insurance Act1994 (Qld) s 46A
Uniform Civil Procedure Rules 1999 (Qld) r 689(1)

Aitken v Suncorp Metway Insurance Ltd [2007] QSC 280

COUNSEL:

R A Myers for the applicant

S C Williams QC for the respondent

SOLICITORS:

deVere Lawyers for the applicant
Quinlan Miller & Treston for the respondent

1. MACKENZIE J:  When the reasons for judgment in this matter were delivered, I invited the parties to confer with a view to agreeing upon the terms of an order that was appropriate to progress the proceedings, including the costs order.

1. Agreement has been reached on most of the orders and they are appropriate to enable the matter to proceed in an orderly fashion.  The only matters requiring comment, so far as the procedural orders are concerned, are concerned with an obligation upon the applicant to supply any further expert reports he intends to rely on by 24 December 2007, and whether there should be specific provision to facilitate further independent medical examinations, including an obligation on the applicant to attend any such reasonable examinations.

1. There is no agreement as to the costs order.  Each party seeks costs of the application.

1. With regard to the directions, so that there is no ambiguity, it seems appropriate to make the obligation to provide further expert reports upon which the applicant intends to rely, subject to the separate processes envisaged by paragraphs 4 and 6. The additional requirements in paragraph 6 concerning choice by the applicant of an expert from a panel and attendance at examination seems to mirror s 46A of the Motor Accident Insurance Act1994 (Qld) and seems superfluous at this point.

1. With regard to costs, the sequence of events leading to the necessity for the applicant to seek relief is set out in the reasons for judgment previously delivered ([2007] QSC 280). The primary responsibility lay with the applicant’s solicitor, in that a letter sent in January 2007 requesting sample reports of experts nominated by the respondent had not been answered due to what appears to have been a systems failure in the respondent’s solicitors’ offices. By the time the limitation period expired, some four months later, no reminder had been sent to them, and the limitation period expired. Then, notwithstanding the stage that the claim had reached, the respondent gave instructions to take the limitation point.

1. The applicant relies on the general provision in UCPR r 689(1) that costs follow the event, while recognising that another order may be made. The respondent relied on the fact that the applicant had sought an indulgence which overrode a defence otherwise available to the respondent and which it reasonably defended. The delay was largely unexplained, including delay prior to the sequence of events that made the application necessary. While there may have been no evidence of personal default by the applicant, there was on the part of his solicitor. The respondent should therefore not be burdened with the costs of resisting the application.

1. In the particular circumstances, I am not persuaded that the respondent should pay the applicant’s costs.  Nor, in the particular circumstances, am I persuaded that the respondent should have its costs paid by the applicant.  The costs order is that there be no order as to costs.

1. I will make an order in terms of the draft provided by the respondent, amended by adding, at the commencement of paragraph 3, the words “Subject to paragraphs 4 and 6”, deleting in paragraph 6, all words following “above”, and deleting paragraph 8 and inserting a new paragraph 8 “There be no order as to costs.”

Order

1. Order in terms of the draft initialled by me and placed with the papers.