Harding v Boulton (No 2)

[2013] QDC 114

DISTRICT COURT OF QUEENSLAND

CITATION:

Harding v Boulton & Anor (No 2) [2013] QDC 114

PARTIES:

JANELLE MERLE HARDING
(Plaintiff)

v

ROBERT CHRISTOPHER JON BOULTON
(First defendant)

and

QBE INSURANCE (AUSTRALIA) LTD (ACN 003191035)
(Second defendant)

FILE NO/S:

D73/12

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Rockhampton District Court

DELIVERED ON:

22 May 2013

DELIVERED AT:

Rockhampton District Court

HEARING DATE:

Cost issues heard on the papers

JUDGE:

Smith DCJ

ORDER:

Reserve the costs of and incidental to the Application until conclusion of the proceedings or further earlier order.

CATCHWORDS:

PRACTICE AND PROCEDURE- COSTS- interlocutory proceedings- reserved costs

Uniform Civil Procedure Rules 1999 r 681 and 682

COUNSEL:

S. Deaves for the Applicant Plaintiff

S. Williams for the Respondent Defendant

SOLICITORS:

Chris Trevor and Associates for the Applicant Plaintiff

Jensen McConaghy Solicitors for the Respondent Second Respondent Defendant

1. On 2 May 2013 I granted the plaintiff’s application that the signatures of the defendant on the request for trial date be dispensed with pursuant to UCPR r 469. I sought written submissions from the parties on the question of costs.

1. The plaintiff in her submission submits that r 681 is applicable. That rule provides:

“General rule about costs

(1)Costs of a proceeding, including an application in a proceeding, are in the discretion of the court but follow the event, unless the court orders otherwise.”

1. The plaintiff also refers in her submissions to s 3(e) of the Motor Accident Insurance Act 1994 and r 5 of the UCPR.  The plaintiff submits that an order should be made that the second defendant pay the plaintiff’s costs on the standard basis.  The plaintiff submits there is no reason for the court not to follow the usual rule.

1. The plaintiff submits the second defendant was aware of the issues raised in the Centrelink report as early as May 2012 and certainly as at the date of the compulsory conference on 12 September 2012.  The plaintiff submits that no attempt was made to obtain the plaintiff’s Medicare history prior to 7 January 2013.  It is submitted it was open to the defendants to sign the request for trial date.  The plaintiff’s solicitors gave notice of their client’s instructions to bring the application some six or seven days before the application was filed, and no response was received.

1. The second defendant, on the other hand, submits it is an appropriate case that costs not be assessed until the proceeding ends pursuant to UCPR r 682(2) for the following reasons:

(a)        The plaintiff had not made full disclosure of all relevant medical conditions in her statement of loss and damage dated 9 December 2012;

(b)        The second defendant’s solicitors moved promptly to secure the plaintiff’s Medicare history following their engagement by sending the Medicare authority on 7 January 2013 to the plaintiff’s solicitors;

(c)        The delay between January 2013 and March 2013 was in consequence of the plaintiff’s solicitor not having received that correspondence;

(d)        The plaintiff’s solicitor raised the intention to bring the said application prior to even having forwarded the signed Medicare authority to the second defendant’s solicitor;

(e)        Upon receipt of the authority the second defendant’s solicitor sent it to Medicare.

1. The second defendant submits that the question of prejudice was still alive in that the plaintiff’s solicitor had agitated for the matter to be set down in the June 2013 sittings which was inappropriate in light of the history.  Accordingly it is submitted the plaintiff should have her costs either as costs in the cause or that costs not be assessed until the end of the proceeding, whether by judgment or compromise.

1. Having considered the submissions by both parties, it is my determination that costs of this matter should be reserved.  The reason I reach that conclusion is that it seems clear on the material that the letter was sent by the second defendant’s solicitors on 7 January 2013 enclosing the Medicare authority, and yet this does not appear to have been received by the plaintiff’s solicitors or, if it was, it appears not to have made the file.  I consider further material on this question would be necessary.

1. Further, it is unclear at this point as to the importance of the evidence relating to the Medicare claims history.  I believe it is necessary for the trial Judge to analyse that topic, in light of the evidence adduced at trial, before making a finalised decision on the question of costs.

1. In the circumstances I reserve the question of costs until the conclusion of the trial, or further earlier order.