John v Millenium Hi-Tech Group Pty Ltd (No. 2)

[2025] QDC 65

DISTRICT COURT OF QUEENSLAND

CITATION:

John v Millenium Hi-Tech Group Pty Ltd (No. 2) [2025] QDC 65

PARTIES:

JOELEEN ROBIN JOHN

(applicant)

v

MILLENIUM HI-TECH GROUP PTY LTD
(ABN 94 103 423 374)

(respondent)

FILE NO:

BD 2592 of 2024

DIVISION:

Civil

PROCEEDING:

Costs application

ORIGINATING COURT:

Brisbane District Court

DELIVERED ON:

23 May 2025

DELIVERED AT:

Mackay

HEARING DATE:

Heard on the papers.

JUDGE:

Byrne KC DCJ

ORDER:

The applicant is to pay the respondent’s costs of and incidental to the application, on the standard basis.

CATCHWORDS:

LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – where the applicant sought an indulgence of the Court for bringing a claim for damages for personal injuries – where the extension was granted under section 59(2) of the Personal Injuries Proceedings Act 2002, but the claim was ultimately unsuccessful – whether the applicant should pay the respondent’s costs of the application.

LEGISLATION:

Personal Injuries Proceedings Act 2002 (Qld), s. 59(2).

CASES:

Folwell v Mayer(No. 2) [2020] QSC 211.
John v Millenium Hi-Tech Group Pty Ltd [2025] QDC 33.
The President’s Club Limited & Anor v Palmer Coolum Resort Pty Ltd & Anor (No. 2) [2020] QSC 11.

COUNSEL:

Mr. M. Forbes for the applicant.

Mr A.P.J. Collins for the respondent.

SOLICITORS:

TPIL Layers for the applicant.

Barry Nilsson fir the respondent.

1. On 17 March 2025 I granted the applicant leave pursuant to s 59(2) of the Personal Injuries Proceedings Act 2002, thereby effectively altering the limitation period applicable to an intended Claim for damages for personal injuries.[1]  The appropriate order as to costs is now contested.

   [1]John v Millenium Hi-Tech Group Pty Ltd [2025] QDC 33.

2. The respondent contends that its costs of, and incidental, to the application should be paid by the applicant, on the standard basis.  It primarily relies on the fact that the applicant successfully sought the indulgence of the Court and that, in the primary judgment[2] I identified the real cause of the dilemma as the applicant’s then solicitor’s failure to protect the applicant’s limitation period position when correspondence previously sent to the respondent went unanswered.  The respondent points to the decision in Folwell v Mayer(No. 2)[3] as an example of when an order such as that sought by the applicant was properly made, and it submits that the factual comparability is persuasive in the current matter.

   [2]At [31].

   [3][2020] QSC 211.

3. The applicant contends there should be no order as to costs.  It is a guiding principle, and not a rule, that a party seeking the Court’s indulgence may be required to pay the costs of the application.  There are examples of departures from that principle.  In the present case, it is submitted that the respondent unreasonably maintained that a complying Part 1 Notice had not been served and, if the respondent had accepted that it had been served, it was likely that the application would not have been contested.  Further, it is submitted, in reliance on my observations at [40] of the primary judgment, that the prejudice suffered by the respondent would likely have been ameliorated by a correct understanding on when service of a complying Part 1 Notice occurs meant that that basis of objection to the application was of little moment.

4. I accept there is no actual rule that a party successfully seeking the indulgence of a court must pay their opponent’s costs; it is a guiding principle only.[4]  While the issue must be determined on its own facts, the principle remains a weighty consideration.

   [4]The President’s Club Limited & Anor v Palmer Coolum Resort Pty Ltd & Anor (No. 2) [2020] QSC 11, [44]-[47].

5. While the respondent did not concede that a complying Part 1 Notice had been served, it cannot be said that it pressed the point with any vigour.[5]  My observation at [40] of the primary judgment was a finding in the course of what I consider was a reasonably arguable case on the primary application, which required a number of factors to be balanced.  It was not meant to suggest that the point was not fairly arguable.

   [5]Ts 1-9, ll 9-20.

6. Folwell v Mayer (No. 2) is not a binding comparable authority, but it is broadly factually comparable.  It demonstrates how the discretion was exercised in those particular circumstances.  However, what must be determined is the exercise of the discretion in the actual circumstances of this matter.

7. Ultimately, the need for the primary application arose through the failure of the applicant’s then solicitor to protect her position.  Even had the respondent’s solicitor understood the correct state of the law as to service of a complying notice, and chosen to do nothing, it seems that the same outcome would have occurred.  The position taken by the respondent was not unreasonable, in the current circumstances.  In my view, the applicant should pay the respondent’s costs of the application.

8. The respondent does not press for an order that the applicant’s solicitors pay its costs, as occurred in Folwell v Mayer (No. 2).  It is said that that position is taken on the basis of an understanding gained from discussions with the applicant’s solicitors.  Given the point is not pressed, I will not embark on a consideration of it.  Ultimately it will be a matter for resolution between the applicant and her solicitors.