Harris v RACQ GIO Insurance
[2004] QDC 304
•10 September 2004
DISTRICT COURT OF QUEENSLAND
CITATION:
Harris v RACQ GIO Insurance [2004] QDC 304
PARTIES:
HELEN MAREE HARRIS (Plaintiff)
And
JACQUELINE MARY GILDING (First Defendant)
And
RACQ GIO INSURANCE (Second Defendant)
FILE NO/S:
250 of 2004
DIVISION:
Civil
PROCEEDING:
Application
ORIGINATING COURT:
District Court
DELIVERED ON:
10 September 2004
DELIVERED AT:
Maroochydore
HEARING DATE:
6 August 2004
JUDGE:
Judge J.M. Robertson
ORDER:
[1] Application dismissed.
CATCHWORDS:
Application for costs order based on a claim settled as a consequence of the compulsory processes under the Motor Accident Insurance Act 1994 where no claim institute, power to commence such a proceeding by originating application.
Legislation:
Motor Accident Insurance Act 1994 (Qld), ss3, 47, 51B
Uniform Civil Procedure Rules 1999, rules 5, 10 and 11 and Part 2 Chapter 17
COUNSEL:
Mr Grant-Taylor (for the plaintiff)
SOLICITORS:
Schultz Toomey O’Brien Lawyers (for the plaintiff)
The Plaintiff filed an application on 20 July 2004 in these terms:
“1. That the Respondent pay the Applicant’s costs of and incidental to her claim for damages arising out of an accident that occurred on 1 March 2002, on a standard basis on the District Court Scale applicable to actions in which the sum recovered exceeds $50,000.00.
2. The Respondents pay the Applicant’s costs of the application.
3. Further or other relief.”
Originally, the parties sought to have the Registrar make orders in terms of a consent order pursuant to Rule 666. The Registrar declined to do so, and referred the matter to this Court.
The parties have reached a settlement of a damages claim arising out of a motor vehicle accident. The settlement was reached as a consequence of the compulsory procedures mandated by the Motor Accident Insurance Act 1994 (Qld). A deed was entered into between the plaintiff and RACQ GIO Insurance as the compulsory third party insurer, which included an agreement that the insurer would pay the plaintiff’s “standard District Court costs and outlays”. The parties have not been able to agree about costs.
No claim has ever been filed in the Court and the Registrar was concerned that the rules did not permit an originating application for this purpose.
When the matter came before me on 6 August 2004, Mr Grant-Taylor who appeared for the plaintiff seemed surprised that the Registrar had taken this course, and had not really turned his mind to the perceived problem. I adjourned the matter to enable enquiries to be made of Mr Ken Toogood, the Principal Registrar to see if he was aware of any practice in the area that might assist. This proved inconclusive, so by way of trying to save unnecessary expense I caused the Deputy Registrar to write to Mr Schulz on 16 August 2004 in these terms:
“Judge Robertson has asked for written submissions from you directed at:
(a)the court’s jurisdiction to hear and determine a dispute about costs in circumstances in which no proceeding has been commenced in the court;
(b)where it is stated, in any Act or rule, that proceedings of this kind can be started by application.
Could I suggest an alternative course? As you are aware, I was not prepared to make the consent order tendered by you and referred the matter to court.
I suggest that you consider obtaining the consent from the other party, to the disputed costs being assessed by an independent costs assessor. In that way, the court and/or the taxing officer would not have to consider the matter further.”
It is apparent that the alternative suggested in that letter has not been pursued, so it falls for me to make a decision. Mr Schulz’s latest affidavit annexes the correspondence with the solicitors for the insurer and the last letter seems to be dated 10 August 2004. I assume that the plaintiff is not interested in following the course suggested.
The only issue relates to this Court’s power to make the order sought. The parties affected by the order have signed a consent order. The submissions filed on 6 September 2004 rely entirely on certain provisions of the Act to support the plaintiff’s contention that this Court does have power to make the orders sought. The submission does not refer to any rule or law that enables it to proceed by way of originating application.
The applicant relies on s. 47 of the Act which imposes a duty on the insurer to co-operate with a claimant:
“47 Duty of insurer to cooperate with claimant
(1) The insurer must cooperate with a claimant and, in particular:
(a) must provide the claimant with copies of reports and other documentary material in the insurer’s possession about the circumstances of the accident or the claimant’s medical condition or prospects of rehabilitation; and
(b)must, at the claimant’s request, give the claimant information that is in the insurer’s possession, or can be found out from the insured person, about the circumstances of, or the reasons for, the accident.
(2) The insurer must:
(a)provide the claimant with copies of reports and other documentary materials within 1 month after receiving the notice of claim under division 3 or, if the reports or materials come into the insurer’s possession later, within 1 month after they come into the insurer’s possession; and
(b) respond to a request under subsection (1)(b) within 1 month after receiving it.
(3) If the claimant requires information provided by an insurer under this section to be verified by statutory declaration, the information must be verified by statutory declaration.
(4) If an insurer fails, without proper reason, to comply fully with a request under this section, the insurer is liable for costs to the claimant resulting from the failure.”
She also relies on s. 3, the “objects” section which is in these terms:
“3 Objects
The objects of this Act are—
(a)to continue and improve the system of compulsory third-party motor vehicle insurance, and the scheme of statutory insurance for uninsured and unidentified vehicles, operating in Queensland; and
(aa) to establish a basis for assessing the affordability of insurance under the statutory insurance scheme and to keep the costs of insurance at a level the average motorist can afford; and
(b) to provide for the licensing and supervision of insurers providing insurance under policies of compulsory third-party motor vehicle insurance; and
(c) to encourage the speedy resolution of personal injury claims resulting from motor vehicle accidents; and
(d)to promote and encourage, as far as practicable, the rehabilitation of claimants who sustain personal injury because of motor vehicle accidents; and
(e)to establish and keep a register of motor vehicle accident claims to help the administration of the statutory insurance scheme and the detection of fraud; and
(f)to promote measures directed at eliminating or reducing causes of motor vehicle accidents and mitigating their results.”
The argument is that it is consistent with the objects of the Act set out in s. 3 that the legislature intended that the obligation on the insurer to co-operate with the claimant “must also contemplate co-operation in having the terms of any agreed settlement carried into effect”. Even accepting that s. 47 covers a “wide field”; I cannot see any merit in this submission at all.
The plaintiff relies on Mr Schulz’s affidavit filed on 6 September 2004 to show a lack of co-operation. Apart from there being no evidence of a lack of co-operation in relation to the matters covered by s. 47, the affidavit completely fails to demonstrate a lack of co-operation on the part of the insurer on the question of costs. This can be amply demonstrated by a letter dated 21 July 2004 from the insurer’s solicitors to Mr Schulz in which this was said (by reference to Mr Schulz’s proposal to file this application):
“In respect of costs, our client will agree to pay for the filing fee of the Application, but not the entire costs of the Application, on the basis that you have not tried to negotiate the costs of this matter in a less expensive way by submitting a short form assessment. You asked us in correspondence dated 27 May 2004 if we would be prepared to negotiate costs based on a short form assessment and we replied on 28 May 2004 advising our client wished to try to negotiate in this way and submitting some cost assessors for your consideration. It is unusual that you appear to have ignored this correspondence in circumstances where we have been able to negotiate costs based on a short form assessment with your firm on many occasions previously.”
Mr Schultz replied on 20 July 2004 in these terms:
“Your letter of 21 July 2004 does not refer to our letter to you of 3 May 2004. We told you t that time that we were happy to have Queensland Independent Costing Services prepare a short form assessment if your client could accept it. It cannot be said that your client has not been given the opportunity to obtain a short form assessment.
Indeed, your client had until 30 June 2004 to respond but it chose not to do so.
The need for the Application is a necessary standard basis cost. We will be claiming the costs of the Application as a short charge on taxation. These costs will only be increased if it is necessary to retain counsel and have them travel to the Maroochydore District Court for the hearing of the Application. If your client is prepared to sign the Consent Order as previously drafted, please immediately sign and return it.
We have Michael Grant-Taylor SC attending Maroochydore District Court chambers on other matters on 2 August 2004. He will also be appearing on this Application.
We proposed sending him a brief on Monday, 26 July 2004, if we don’t have the signed Consent Order.
We will also be making submissions at the appropriate time in relation to your failure to make an offer to resolve the entire costs issue following your receipt of the Bill of Costs under cover of our letter of 30 June 2004. We wrote to you again on 12 July 2004 as we had not had any response and it is only as a result of your client’s failure to respond that we have had to take the step of bringing the application.”
To which he received a response on 26 July 2004:
“We refer to your correspondence dated 20 July 2004 received at our offices today. We made it clear to you that our client was happy to consider a short form assessment. Just because we put forward some alternatives, nothing was stopping you from obtaining a short form assessment from QICS for our consideration.
We did not receive your correspondence to us dated 12 July 2004 – please provide a copy.
Enclosed is the signed consent order as requested by you.”
There has been no further attempt to settle costs, on the evidence. It cannot be said that the insurer has failed to co-operate. The Act provides no basis for the application.
In the absence of any further assistance from the plaintiff, I will look at the rules to see if there is some power to make the orders sought.
Rule 11 of the Uniform Civil Procedure Rules 1999:
“11 Application permitted
A proceeding may be started by application if:
(a)the only or main issue in the proceeding is an issue of law and a substantial dispute of fact is unlikely; or
(b)there is no opposing party to the proceeding or it is not intended to serve any person with the originating process; or
(c) there is insufficient time to prepare a claim because of the urgent nature of the relief sought.”
It is not suggested, nor could it, that the dispute over costs involves an issue of law. Mr Grant-Taylor referred me to rule 10 on 6 August 2004, but it has no application in the circumstances here, and, it is not relied upon in his written submission.
One of the aims of the Act is to encourage claimants to settle outside the Court process. What this case identifies is that a claimant should ensure certainly on all aspects of the settlement prior to accepting a final offer. This could be achieved simply by adding to the words “standard District Court costs and outlays” the words “as assessed by (a nominated costs assessor)”. As is demonstrated by the correspondence, it appears that Mr Schultz and the insurer’s solicitors have in the past, settled previous costs agreements on the basis of short form assessments by costs assessors. I also note that in relation to compulsory conferences covered by s. 51B, the parties must exchange costs statements which would have prevented the dispute.
There is good reason why the court should insist that there be a proper basis for applications of this kind. The rules permit the Registrar to assess costs, but Part 2 of Chapter 17 “applies to costs payable or to be assessed under an Act, these rules or an order of the court” and an order of a court can only be made in a proceeding properly commenced in the court. If it was intended that the Court Registrars be potentially responsible for assessing disputed costs in relation to all claims settled prior to any court proceedings, then it would be expected that such power would be clearly articulated in some Act or rule. It is not to the point to rely on rule 5 in the absence of any law or rule permitting an application of this kind.
The plaintiff is not prevented from taking court action against the insurer upon the terms of the Deed if she is so advised.
For these reasons the application is dismissed.
0
0
2