Findlay v Queensland Folk Federation Inc (No 2)

[2016] QDC 147

DISTRICT COURT OF QUEENSLAND

CITATION:

Findlay v Queensland Folk Federation Inc & Ors (No 2.) [2016] QDC 147

PARTIES:

ELIZABETH ANN FINDLAY

(plaintiff)

v

QUEENSLAND FOLK FEDERATION INC.

(first defendant)

And

KAYBRI PTY LTD (ACN 109 226 640) AS TRUSTEE FOR THE ASV TRUST AND STEWART JARMAN AS TRUSTEE FOR THE JARMAN FAMILY TRUST TRADING AS ACTIVE SOUND AND THE P.A. SHOP.

(second defendant)

And

NIGEL PARRATT 

(third defendant)

And

PRENDEVILLE  PRODUCTION SERVICES

(fourth defendant)

FILE NO/S:

4057 of 2010

DIVISION:

Trial Division

PROCEEDING:

Civil Trial

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

15 June 2016

DELIVERED AT:

Brisbane

HEARING DATE:

28 April 2016

JUDGE:

Reid DCJ

ORDER:

1.   That the plaintiff pay the defendants’ costs of the proceedings on a standard basis limited to those that would have been paid if only one solicitor had been engaged for all defendants from the commencement of litigation.

CATCHWORDS:

COSTS – whether costs are to be assessed on the standard basis for each defendant or assessed against a single defendant

Personal Injuries Proceedings Act 2002 s 4

Uniform Civil Procedure Rules 1999 rr 681, 702, 721

COUNSEL:

P De Plater for the plaintiff

C Heyworth-Smith QC and D Cormack for the defendants

SOLICITORS:

Schultz Toomey O’Brien for the plaintiff

Meridian Lawyers for the first defendant

Moray Agnew for the second defendant

Barry Nilsson for the third defendant

Norton Rose Fulbright Australia for the fourth defendant

1. In this matter I have previously given judgment for the plaintiff against each of the defendants for the sum of $6,000.  Because of offers made pursuant of the provisions of the Personal Injuries Proceedings Act 2002 (PIPA) it was accepted that the defendants were entitled to orders for costs of the proceedings against the plaintiff on the standard basis.

1. The exact terms of the order were however in dispute.

1. There were four defendants. Initially each defendant instructed separate solicitors and filed separate defences.  Shortly before trial a joint defence of all four defendants was filed and at trial all were represented by the same counsel.

1. The plaintiff’s claim arose out of an incident in which lights in a venue at the Woodford Folk Festival fell, striking her on the head.  All four defendants were variously involved in the administration of the venue.

1. In circumstances where, at trial, all four defendants were jointly represented, the plaintiff’s counsel submitted the costs his client ought to be required to pay should be limited to those which would have been payable if the defendants had adopted that position from the start of the litigation.

1. Senior Counsel for the defendants submitted it was a matter for the cost assessor to determine whether it was reasonable to have four solicitors engaged and whether in the exercise of the assessor’s discretion, the plaintiff should bear the additional costs associated with separate solicitors being instructed.

1. In written submissions the defendants’ counsel referred to r 681(1) of the Uniform Civil Procedure Rules 1999 (UCPR) that provides that:

“costs of a proceeding…are in the discretion of the court but follow the event, unless the court orders otherwise.”

1. The defendants’ counsel submitted that as each defendant was essentially successful, an order for costs should ordinarily be made in their favour.  Recognising that there was a discretion to order otherwise, the submissions refer to a number of matters which it is said justify making of an order without the limitation sought to be placed on it by the plaintiff’s counsel.  In particular, defendants’ counsel relied on the following points;

(a)        the plaintiff had elected to sue four defendants in a pointless case;

(b)        the defendants should not be punished for agreeing apportionment and thereby significantly reducing the duration of the trial;

(c) the cost assessor is the person best placed to determine which items should be assessed in the defendants favour and which should not, and referred to r 702(2) of UCPR that provides;

“When assessing costs on the standard basis, a costs assessor must allow all costs necessary or proper for the obtainment of justice or for enforcing or defending the rights of the party whose costs are being assessed.”

1. Senior counsel for the defendants also referred to r 721 that refers to the discretion of a cost assessor when assessing costs.

1. The defendants’ counsel also submitted that the proposed order would be manifestly unjust to the defendants because they would not have incurred costs equally.  The order proposed by the plaintiff’s counsel does not however contend for an order for costs against a particular defendant to the exclusion of others.

1. It was also submitted that in some instances in this case it was entirely reasonable for the defendants to incur costs separately.  Examples were said to be that it was unreasonable to expect an agreement on apportionment before the filing of separate defences and that it was necessary and proper for each defendant to separately consider the question of apportionment.  Senior counsel referred also to the requirement that each defendant make its own disclosure and statement of expert and economic evidence.  It was submitted that the order contemplated by the plaintiff was unnecessary, given the assessor’s discretion. 

1. I do not agree with senior counsel’s submission. I agree generally with counsel for the plaintiff who stated in written submissions, “such a position ignores the scope and purpose of the pre-litigation steps required pursuant to the provisions of PIPA”.

1. In my view, the purpose and effect of the PIPA dictates that an order should be made in terms of that sought by the plaintiff’s counsel. In particular, pursuant to s 4(2) of PIPA, the purposes of the Act are to be achieved generally by, inter alia, providing a procedure for the speedy resolution of claims for damages for personal injury to which the act applies, promoting settlement of claims at an early stage wherever possible, and ensuring that a party may not start a proceeding in a court based on a claim without being fully prepared for resolution of the claim by settlement or trial.

1. Pursuant to the claims procedures under PIPA, the plaintiff was here required to give written notice of the claim to the person against whom the proceedings were proposed to be started and the person to whom notice of claim was given, was required to give a preliminary response and to provide documents and information to the claimant before a settlement conference was heard.  So too if a contributor was joined by a respondent, there were similar obligations to provide information and disclosure.  The purpose and the effect of the provisions is to ensure that the parties are properly informed of the nature of the claim, prior to the commencement of the proceedings.  I have no doubt that was the procedure followed in this case. 

1. In those circumstances it is my view that the resolution ultimately reached between the parties, and the disposition of claims between the four defendants, was one that ought to have been reached at a time such that all could have been singularly represented, as ultimately occurred at the trial.  In my view, the failure of the defendants to have been able to reach the position they did at an earlier time is not something that should be visited by an order for costs such as the defendants’ senior counsel sought.

1. In the circumstances, I think it is reasonable and appropriate only that the plaintiff pay the defendants’ costs of the proceedings on a standard basis, limited to those that would have been paid if only one solicitor had been engaged for all defendants from the commencement of litigation. I so order.

1. In so, ordering I should also indicate that I do not accept that the cost assessor is the person best placed to make the determination whether particular costs which might have been incurred by each of the defendants’ individual solicitors were appropriately incurred. In my view his expertise is directed specifically to the reasonableness of particular items of expenditure, and not to the exercise of the general discretion of the sort that I have considered.