Allen v The Queensland Local Government Superannuation Board (No. 2)

[2015] QDC 251

DISTRICT COURT OF QUEENSLAND

CITATION:

Allen v The Queensland Local Government Superannuation Board (No. 2) [2015] QDC 251

PARTIES:

LYNDA ALLEN
(plaintiff)

v

THE QUEENSLAND LOCAL GOVERNMENT SUPERANNUATION BOARD
(defendant)

FILE NO/S:

BD 4549/14

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court of Brisbane

DELIVERED ON:

8 October 2015

DELIVERED AT:

Dalby

HEARING DATE:

Plaintiff’s written submissions dated   ; defendant’s written submissions dated 1 October 2015

JUDGE:

Smith DCJA

ORDER:

The Defendant is ordered to pay the plaintiff’s costs of and incidental to the application on the standard basis as agreed or assessed.

CATCHWORDS:

COSTS- Whether part thereof should be on an indemnity basis

Uniform Civil Procedure Rules 1999 (Q) rr 681, 702

Allen v The Local Government Superannuation Board [2015] QDC 237

Bennett v Chief Executive Officer of the Australian Customs Service (2004) 140 FCR 101; 210 ALR 220

Calderbank v Calderbank [1973] 3 All ER 333

Switchcorp Pty Ltd v Multimedia Ltd [2005] VSC 425

COUNSEL:

Mr P. Bingham for the plaintiff

Mr J. Dillon for the defendant

SOLICITORS:

Maurice Blackburn for the plaintiff

King & Co for the defendant

Introduction

1. This is the costs decision consequent on the decision given on 24 September 2015.[1] 

   [1]Allen v The Local Government Superannuation Board [2015] QDC 237.

Plaintiff’s submissions

1. The plaintiff submits, in this case, that the defendant should pay her costs of and incidental to the application to be assessed on a standard basis up until 15 September 2015 but on an indemnity basis from 15 September 2015. 

1. The plaintiff submits that she repeatedly asked the defendant to disclose the document.[2]  The defendant refused to provide disclosure.[3]  On 11 September 2015 the plaintiff’s solicitors wrote to the defendant’s solicitors pursuant to the principles in Calderbank v Calderbank.[4]  It is in those circumstances the plaintiff submits for the orders to which I have already referred.

   [2]LJM1 letter dated 17 August 2015, LJM5 letter dated 21 August 2015 and MFW7 letter dated 10 September 2015.

   [3]LJM4 letter dated 18 August 2015, LJM6 letter dated 2 September 2015 and MFW6 letter dated 9 September 2015.

   [4][1975] 3 All ER 333.

Defendant’s submissions

1. The defendant, on the other hand, submits that costs are in the discretion of the court and in all of the circumstances it is appropriate for the defendant to pay the plaintiff’s cost of the application to be assessed on the standard basis. 

1. The defendant submits that, notwithstanding the letter dated 11 September 2015, the circumstances are of such as to warrant departure from the usual rule.[5]  The defendant has said that the precise relevance of the advice was not fully articulated by the plaintiff until 7 September 2015.  It is further submitted that the waiver issued turned not on the basis of any rule that the disclosure of the gist of the advice amounts to waiver, but whether the disclosure of the document was inconsistent with the maintenance of the confidentiality of the advice, informed by considerations to fairness. 

   [5]Rules 681 and 702 of the Uniform Civil Procedure Rules 1999 (Q).

1. It is submitted that the position taken by the defendant before the hearing of the application was not misconceived and the arguments involved consideration of matters about which minds might reasonably differ.  In addition, it is pointed out that authorities relied on by the plaintiff in correspondence[6] which indeed were not followed in later decisions.

   [6]Switchcorp Pty Ltd v Multimedia Ltd [2005] VSC 425 and Bennett v Chief Executive Officer of the Australian Customs Service (2004) 140 FCR 101.

1. It was not unreasonable, in all of the circumstances, for the defendant not to accept the Calderbank offer at the time it was made.

Disposition

1. Having considered both submissions, it seems to me the position taken by the defendant was reasonably arguable.  I agree with the defendant’s submissions that this was a matter about which reasonable minds might differ in light of the extensive authority on the point. It may also be said that issues of fairness and consistency may be viewed differently by opposing parties.

1. Further, I agree that the basis of my decision was in effect that the advice was relevant to the decision made as distinct from the mere disclosure of the gist of the advice amounting to waiver. 

1. In all of those circumstances, in the exercise of my discretion, I have determined to apply the usual rule. 

1. I order the defendant to pay the plaintiff’s costs of and incidental to the application, on the standard basis, as agreed or assessed.