Greenbank RSL Services Club v Jenkins
[2014] QDC 207
•9 September 2014 Ex tempore
DISTRICT COURT OF QUEENSLAND
CITATION: | Greenbank RSL Services Club v Jenkins [2014] QDC 207 |
PARTIES: | GREENBANK RSL SERVICES CLUB (ABN 64 442 003 715) (applicant) v JOHN FRANCIS JENKINS (respondent) |
FILE NO/S: | 3306/14 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | District Court of Queensland |
DELIVERED ON: | 9 September 2014 Ex tempore |
DELIVERED AT: | Brisbane |
HEARING DATE: | 9 September 2014 |
JUDGE: | Samios DCJ |
ORDER: | 1. Order as per draft |
CATCHWORDS: | PRACTICE - COSTS - where the respondent suffered personal injury as a result of being restrained by security officers at the applicant’s premises - where the applicant requested information from the respondent pursuant to section 22 of the Personal Injuries Proceedings Act 2002 (Qld) - where the information was not provided by the respondent to the applicant in a timely fashion - where the only issue on the application is the issue of the respondent paying the applicant’s costs as a result of the requested information not being provided in a timely fashion - whether the respondent provided a proper reason for failing to supply the requested information to the applicant in a more timely fashion Legislation Personal Injuries Proceedings Act 2002 (Qld) s 22 |
COUNSEL: | Mr S Williams Jnr for the applicant Mr J Sewell for the respondent |
SOLICITORS: | McInnes Wilson Lawyers for the applicant Trilby Misso Lawyers for the respondent |
HIS HONOUR: When this application was filed, the applicant sought a number of orders. One of those orders was that the respondent provide the applicant with the information requested in paragraphs (a) to (j) of the applicant’s request for information, dated 16 July 2014, pursuant to section 22 of the Personal Injuries Proceedings Act 2002.[1] The information referred to was to be provided by way of a statutory declaration, executed by the respondent. In addition, the applicant sought orders that the respondent execute authorities that had been provided in a letter to the solicitors dated 7 July 2014 for the release of the respondent’s files from Medicare, Centrelink, and WorkCover.
[1] Personal Injuries Proceedings Act 2002 (Qld).
Basically, the respondent claims damages for personal injuries and consequential loss, which arose out of an incident on 12 January 2013 when the respondent was restrained by security officers employed by Entsec Entertainment Security Proprietary Limited at the applicant’s premises. The applicant’s premises are an RSL Services Club at Greenbank.
All the information sought and authorities that were sought have been now provided by the respondent to the applicant. What remains to be considered is the question of costs. The respondent submits that there has been proper reason here for the respondent’s failure to comply with these requests. Therefore, pursuant to section 22, subsection (8) of the Personal Injuries Proceedings Act 2002,[2] I should not order the respondent to pay costs. Alternatively, the respondent submits that in the exercise of my discretion, in all the circumstances, I should not order the respondent to pay the applicant’s costs of this application.
[2] Ibid.
It is unfortunate that the solicitor for the respondent, having the conduct of the matter in the early stages after the requests were received from the applicant’s solicitors, had to go on unexpected leave of absence. That was during or about late July 2014. The consequence, I am prepared to accept, was that the conduct of the respondent’s claim was transferred to Ms Christiansen on or about the 14th of August 2014. She had no involvement in the respondent’s claim prior to the file being transferred to her. In addition, the respondent resides in country Victoria.
Nevertheless, despite the unfortunate absence of Ms Davies and that the respondent resides in country Victoria, there is correspondence from the solicitors for the applicant seeking response to the requests, and I’m satisfied these requests were not being responded to expeditiously. I do not accept that, in this case, the leave of absence of Ms Davies can be proper reason for failing to comply with the requests. In addition, I do not accept that the respondent residing in country Victoria is proper reason for not complying with the requests at earlier times.
Litigation has changed. It does seem, to some extent, at times illness may not be given due weight, but in this case, the file was handed over, the requests were outstanding, and in my opinion had to be met in a timely manner. The respondent’s solicitors were on notice, and they acted accordingly. I think the problem, in the end, is the respondent. There is no circumstance advanced as to why he did not respond in a more timely fashion. As I’ve said, I just do not accept that residing in country Victoria is an excuse in this case. If there had been other circumstances, that might have had to be considered in all the circumstances. The information in the authorities, to put it simply, have been supplied too late. In all the circumstances, the conclusion I reach is that the respondent should be liable for the costs in this case pursuant to section 22, subsection (8),[3] or alternatively, I would exercise my discretion and order the respondent to pay the applicant’s costs. In all the circumstances, then, there’ll be an order as per the draft, with the addition of the words “on the standard basis” which I have written in. Therefore, there’ll be an order as per the draft.
[3] Ibid.
Mr Sewell, I decline to make that order. This is the order that I propose to make, then: the one in the draft initialled by me and left with the papers. Thank you.
MR WILLIAMS: Thank you, your Honour.
MR SEWELL: Thank you, your Honour.
HIS HONOUR: Yes. Good morning.
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