Dunstan v. Gillett

[2008] QDC 178

[2008] QDC 178

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 3775 of 1998

COLIN PETER DUNSTAN	Applicant
and
GREGORY GILLETT	Respondent

BRISBANE

..DATE 03/07/2008

ORDER

CATCHWORDS: Uniform Civil Procedure Rules r 389, r 708 order for appointment of a costs assessor to make a default assessment - 4 years delay since "guillotine" order providing for costs was made - leave to proceed (if necessary) granted

HIS HONOUR: This is an application based on Rule 708, before the Court because the Registrar was loath to deal with it, ostensibly because of the long time which has elapsed since Judge Wylie QC made the order under which the applicant/defendant's entitlement to costs arises.

It contained two costs orders. One was in relation to the attendance costs of the application his Honour dealt with; the other in the following terms:  "In the event of the non compliance by the plaintiff with this order of which an affidavit of defendant/solicitor as to such non compliance shall be sufficient evidence and upon proof of service of this order the proceedings shall stand dismissed for want of prosecution and in that event the plaintiff should pay the defendant's costs of and incidental to this proceeding assessed on the standard basis."

The Registrar took the view that the order quoted did not authorise him to enter a Judgement for costs and his Honour was approached, responding personally in a letter signed by him to express the view that in the events which had happened there was no need for the order to be changed as the solicitors had suggested, that the course of events sufficed to create an entitlement to receive costs.

The Court ought to take some care, given the unusual amount of time which has elapsed, regarding the plaintiff's rights.  He hasn't appeared today when called.  It appears he's been served by post with notice of today's application and indeed that he has been in contact with the defendant's solicitors even to the extent of expressing an interest some months ago as to what his costs liability was.

Since being served with the costs statement dated 1 February 2008 he has taken no steps, putting the defendant in the situation of being able to seek a default assessment under Rule 708. He has the possibility under Rule 709 of seeking to challenge what might happen in that assessment.

The Court makes an order in the terms of the initialled draft which provides:

1. That Mr James McClelland is appointed as costs assessor pursuant to Rule 708(2) of the Uniform Civil Procedure Rules 1999 to assess costs under Rule 708 of the Uniform Civil Procedure Rules 1999 in respect of the costs statement dated 1 February 2008 a copy of which is exhibited to the affidavit of H A Stubbings filed 5 June 2008;

2. That the plaintiff pay the costs of the defendant of the application;

3. That should the defendant require leave under Rule 389, such leave is to be taken as having been granted.

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