SUPREME COURT OF QUEENSLAND
CITATION:
Allen v O’Donnell & Anor (No 2) [2021] QSC 149
PARTIES:
BLAISE ANTHONY ALLEN
(plaintiff/applicant)
v
MATTHEW THOMAS O’DONNELL
(first defendant/first respondent)
RACQ INSURANCE LIMITED
ACN 009 704 152
(second defendant/second respondent)FILE NO/S:
SC No 919 of 2019
DIVISION:
Trial Division
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court at Rockhampton
DELIVERED ON:
23 June 2021
DELIVERED AT:
Rockhampton
HEARING DATE:
14 June 2021
JUDGE:
Crow J
ORDER:
1. The Second Defendant provide the Plaintiff with a copy of its Costs Agreement with its solicitors Cooper Grace Ward together with any copies of any variations to that Agreement from the time of its original instructions to Cooper Grace Ward to date of this application
CATCHWORDS:
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL MATTERS – NATURE OF COSTS: INDEMNITY DOCTRINE – GENERALLY – where the plaintiff received judgment in his favour but the judgment amount did not exceed the defendant’s mandatory final offer – where the plaintiff is liable for the defendant’s costs from the date of the exchange of final offers – where the plaintiff contends that the cost agreement between the second defendant and its solicitors (“costs agreement”) may contain provision for stage-based assessments therefore the actually liability under the costs agreement may be less than what it is as assessed on a standard basis – where the defendant deposes that the “total” of the actual costs and outlays exceeds the amount as assessed on a standard basis – where the plaintiff seeks the disclosure of the costs agreement so as to determine whether the indemnity principle has been offended – whether the costs agreement ought to be disclosed
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – OFFERS OF COMPROMISE OR OFFER TO SETTLE OR CONSENT TO JUDGMENT PURSUANT TO RULES – GENERALLY – where the plaintiff is liable for the defendant’s costs from the date of the exchange of final offers – where the plaintiff wishes to make an offer to settle costs pursuant to r 733 of the Uniform Civil Procedure Rules 1999 (Qld) – where the plaintiff contends that without access to the costs agreement it cannot know the liability as between the second defendant and its solicitors and therefore is not in a realistic position to make an offer – whether the costs agreement ought to be disclosed
Uniform Civil Procedure Rules 1999 (Qld) r 702, r 733
Cook v Pasminco Ltd [2000] 107 FCR 44; [2000] FCA 1819, cited
Dyktynski v BHP Titanium Minerals Pty Ltd (2004) 60 NSWLR 203; [2004] NSWCA 154, cited
Harold v Smith (1860) 157 ER 1229, cited
King v King [2012] QCA 81, applied
Kuek v Devflan (2011) 31 VR 264; [2011] VSCA 25, applied
Shaw v Yarranova Pty Ltd [2011] VSCA 55, applied
Wentworth v Rogers (2006) 66 NSWLR 474; [2006] NSWCA 145, appliedCOUNSEL:
S J Deaves for the plaintiff
G J…
Continue reading Allen v O'Donnell (No 2)
Sign in free to access the full text
- AGLC
- Allen v O'Donnell (No 2) [2021] QSC 149
- Case
- [2021] QSC 149
- Decision Date
CaseChat Overview and Summary
The primary legal issues in this case were whether the costs agreement should be disclosed to the plaintiff and whether such disclosure was necessary for the plaintiff to make an offer to settle costs. The plaintiff contended that without access to the costs agreement, they could not accurately determine their liability as between the second defendant and its solicitors and thus were not in a realistic position to make an offer. The defendants argued that the costs agreement should not be disclosed as it contained privileged information.
The court considered the need for transparency and fairness in the costs disclosure process. It noted that while certain aspects of a costs agreement might be protected by legal professional privilege, the court has the discretion to order disclosure where it is necessary to resolve the matter justly. The court held that the costs agreement should be disclosed to the plaintiff to enable them to make an informed offer to settle costs. The court found that the indemnity principle might have been offended if the plaintiff was required to pay more than they were liable for under the terms of the costs agreement.
The court ordered that the second defendant provide the plaintiff with a copy of its costs agreement with its solicitors, Cooper Grace Ward, along with any variations to that agreement from the time of the original instructions to Cooper Grace Ward up until the date of the application. This decision aimed to ensure that the plaintiff could make a realistic offer to settle costs and that the indemnity principle was not breached. The court's order facilitated transparency and fairness in the costs disclosure process, allowing the plaintiff to assess their liability accurately.
Orders
Orders of the court
1. The Second Defendant provide the Plaintiff with a copy of its Costs Agreement with its solicitors Cooper Grace Ward together with any copies of any variations to that Agreement from the time of its original instructions to Cooper Grace Ward to date of this application
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.