Hinks v. McLaughlin
[2008] QSC 11
•11 February 2008
SUPREME COURT OF QUEENSLAND
CITATION:
Hinks v McLaughlin [2008] QSC 11
PARTIES:
ROBYNE LORRAINE HINKS
(applicant)
v
JOHN JOSEPH MCLAUGHLIN
(respondent)FILE NO:
SC 674 of 2008
DIVISION:
Trial Division
PROCEEDING:
Reasons for costs order
DELIVERED ON:
11 February 2008
DELIVERED AT:
Brisbane
HEARING DATE:
8 February 2008
JUDGE:
Mackenzie J
ORDER:
No order as to costs
CATCHWORDS:
PROCEDURE – COSTS – RECOVERY OF COSTS – where the application went beyond the outcome achieved – where neither party succeeded in establishing the position they contended for – whether an order as to costs should be made
COUNSEL:
P F Allen for the applicant
D H Katter for the respondent
SOLICITORS:
Richardson Jensen Solicitors for the applicant
McLaughlin and Associates Lawyers for the respondent
MACKENZIE J: This application has its origin in a dispute over the nature of the respondent’s obligation to release the file in a damages action in which the applicant is plaintiff, where the respondent was initially engaged as solicitor on a no win - no fee basis. The application was for two kinds of relief. The first was an order for the respondent to produce the file relating to the applicant’s claim for damages for personal injuries to her current solicitor. The second was for the respondent to provide all of his accounting records indicating time spent working on the claim.
As argued, the relief sought relating to the respondent delivering the file to the applicant’s solicitor was based on an argument that the respondent had no claim to any payment and therefore no right to retain the file. It was submitted that, because the respondent was desirous of extricating himself from personal injuries work and had asked the applicant to consent to the file being transferred to another named firm of solicitors, his entitlement to any payment lapsed. The proposition that the respondent would not have continued to act for the respondent if she had been unwilling to transfer the file in the circumstances suggested is denied in the correspondence placed in evidence. There are also disputed issues of fact about grounds for dissatisfaction with the progress of the matter while it was in the respondent’s hands.
The applicant had been advised in the material that accompanied a fee agreement of a right to change solicitors if she wished. She did so by putting the matter in the hands of her present solicitor who had day to day control of the file while working at the respondent’s firm. If such a transfer were to be done without any valid grounds upon which the respondent might be denied costs and outlays incurred up to that time, it would not be surprising if an arrangement providing adequate safeguards in respect of fees and outlays incurred up to the time of the change of solicitors would be sought.
In the circumstances, it should have been apparent that the applicant could not succeed summarily on the issue of the absence of a continuing entitlement on the part of the respondent to be paid costs and outlays, even if the right had to be postponed until after successful completion of the proceedings in the applicant’s favour.
There was also no demonstrated basis for the second order sought in the application. The prospects of obtaining either of the orders immediately on the application as it stood and was argued for before me was therefore negligible.
On the other side of the ledger, during the course of correspondence, the applicant offered an undertaking to pay the respondent’s proper fees and disbursements as soon as the claim was finalised and to irrevocably authorise her solicitor to pay them to the respondent when her damages were received. It is to be inferred from the correspondence in evidence that the respondent did not accept that the undertaking as offered provided appropriate safeguards for him.
During the course of submissions, the difficulties in the way of obtaining the orders sought by the applicant were ventilated. The difficulty about the respondent establishing a right to maintain the file if appropriate undertakings were given was also raised. The matter was stood down so that the parties might consider their positions and produce a draft order in light of those concerns. Orders which differed in content were produced by each party. After further submissions and discussion in court, the undertaking and order, with the exception of the costs order were agreed on by the parties.
In principle, the application, as argued, sought relief that went beyond the outcome achieved or likely to be achieved. Neither party succeeded in establishing the positions they contended for, although an undertaking not dissimilar to that offered in correspondence was ultimately given with the agreement of both parties. On balance I am satisfied that the appropriate costs order is that there be no order as to costs.
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