Folwell v Mayer (No 2)

[2020] QSC 211

SUPREME COURT OF QUEENSLAND

CITATION:

Folwell v Mayer (No 2) [2020] QSC 211

PARTIES:

DONNA LEE FOLWELL

(Applicant)

v

JENNIFER MAYER TRADING AS DISCOVERY CHIROPRACTIC

(Respondent)

FILE NO/S:

BS No 13682 of 2019

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

14 July 2020

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Bowskill J

ORDERS:

The applicant’s solicitor, CMC Lawyers pay the respondent’s costs of the originating application filed 9 December 2019, to be assessed on the standard basis, if not agreed.

CATCHWORDS:

LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – determination of costs of application under s 59 of the Personal Injuries Proceedings Act 2002 (Qld) for leave to commence proceedings

COUNSEL:

R D Green for the applicant

P Hackett for the respondent

SOLICITORS:

CMC Lawyers for the applicant

Meridian Lawyers for the respondent

1. On 8 June 2020 I made an order under s 59 of the Personal Injuries Proceedings Act 2002, granting the applicant leave to commence proceedings, even though the limitation period has expired: Folwell v Mayer [2020] QSC 162.

2. These further reasons deal with the costs of that application.

3. The applicant’s solicitors have confirmed that they will not seek to recover the costs associated with the application from the applicant, whether at settlement or otherwise.[1] 

   [1]Affidavit of Ms Wills filed 17 June 2020 at [4].

4. In so far as the respondent’s costs of the application are concerned, for the following reasons I am satisfied it is appropriate to make an order that the applicant’s solicitors, CMC Lawyers, pay the respondent’s costs of the application, to be assessed on the standard basis, if not agreed.

5. Having considered the submissions filed on behalf of both parties, I remain of the view that in the circumstances of this case, where the applicant was seeking an indulgence from the court, and the respondent’s opposition cannot be said to have been unreasonable, it is appropriate that the respondent recover her costs of the application.  

6. The submission put against this, on behalf of the applicant, seems to be that the applicant was successful in seeking the relief she sought; that it is rare for a successful party to be ordered to pay the unsuccessful party’s costs; and that the applicant’s delay did not cause the respondent additional costs.  As to the latter point, if that is the submission (which is not entirely clear) it is without foundation – the only reason the application was required was because of the applicant’s (solicitors’) delay.  But for that delay and inaction, no application would have been required, and no costs would have been incurred.  But as to the other points, it is well supported that, although it is always a matter for the exercise of the court’s discretion, a party seeking an indulgence – particularly of the kind sought in this case – can expect to be required to pay the other party’s costs, unless the other party’s opposition was wholly unreasonable.[2]  That…