Naumann v Clarke and Robertson Radiology - [2002] QDC 69

DISTRICT COURT OF QUEENSLAND

CITATION:

Naumann v. Clarke & Robertson Radiology & Ors [2002] QDC 069

PARTIES:

LUKE JAMES NAUMANN  Plaintiff
And

CLARKE & ROBERTSON RADIOLOGY (a firm)
  First Defendant
And

A I ROBERTSON PTY LTD                   Second Defendant
And

CLARKE & ROBERTSON MEDICAL PRACTICE
(a firm)  Third Defendant

FILE NO/S:

3683 of 1999

DIVISION:

Applications

PROCEEDING:

Appeal

ORIGINATING COURT:

Deputy Registrar

DELIVERED ON:

28 March 2002

DELIVERED AT:

Brisbane

HEARING DATE:

20, 21 February 2002

JUDGE:

Judge Robin Q.C.

ORDER:

CATCHWORDS:

Costs – Uniform Civil Procedure Rules r.703, r.707, r.721, r.722, r.741, r.742 – District Court scale of costs Item 27 – review by court of Deputy Registrar’s reconsideration of costs assessment – particular items considered – defendants’ offer to settle costs slightly exceeded original assessment, fell slightly short of assessment on reconsideration – Deputy Registrar’s exercise of discretion under r.722 not to award costs of assessment upheld, except that defendants, rather than plaintiff, should be liable ultimately to pay the court’s assessment fee – this change made when it appeared more work than previously believed had been done before the offer was made.

COUNSEL:

Mr S. Gray for the Plaintiff

Mr N. Ulrick for the Defendants

SOLICITORS:

Kevin Bradley for the Plaintiff

O’Shea Corser Wadley for the Defendants

This is the plaintiff’s application to the court under UCPR r.742, he being a party dissatisfied with the decision of the Deputy Registrar under r.741 on re-consideration of an original assessment of costs payable by the defendants. A number of items were raised for consideration by the court in its review, against the background of the Deputy Registrar’s having made originally, and adhered to on re-consideration, an adverse order as to costs of the assessment, from the plaintiff’s point of view, based on his non-acceptance of the defendants’ offer to settle costs.

The defendants in some combination conducted a radiology practice, at which the plaintiff was employed. He contracted dermatitis for which he sought to hold them responsible. Proceedings were commenced in the Supreme Court, in circumstances necessitating an extension of the limitation period, which was obtained from Williams J. Comments his Honour made apparently led to the action being transferred to this court and, indeed, settled quite quickly for $15,000 plus costs.

The parties were unable to agree about costs. They co-operated in getting a consent order made in this court requiring the defendants to pay the plaintiff’s costs appropriate to a judgment amount of less then $50,000 to be assessed.

The matter came on as a confessedly “long” one before me as applications judge on 20 February 2002, which was otherwise a heavy chamber day. There was some argument of a general nature, and specifically a separate argument regarding two particular items, upon which I gave rulings, which, as transcribed by the State Reporting Bureau, are included as appendices to these reasons.

The court ran out of time on that afternoon, as I had to adjourn to preside at a Bar Practice Centre Moot at 6pm. The parties were…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Naumann v Clarke and Robertson Radiology

Details

AGLC: Naumann v Clarke & Robertson Radiology [2002] QDC 69
Case: [2002] QDC 69
Decision Date: 28 March 2002

CaseChat Overview and Summary

Naumann v Clarke and Robertson Radiology involved a dispute between the plaintiff, Naumann, and the defendants, Clarke and Robertson Radiology, over costs incurred in the litigation. The matter was heard in the District Court of New South Wales. The plaintiff sought a review of the Deputy Registrar's reconsideration of the costs assessment under the Uniform Civil Procedure Rules. Specifically, Naumann argued that the Deputy Registrar should have awarded certain costs related to the assessment despite the defendants' offer to settle costs that slightly exceeded the original assessment but fell short of the assessment on reconsideration.

The court was required to determine whether the Deputy Registrar's exercise of discretion under rule 722 was correct and whether the defendants, rather than the plaintiff, should be liable to pay the court's assessment fee. The plaintiff argued that the defendants' offer to settle costs should have resulted in a different outcome regarding the costs of the assessment. The court considered the nature of the work done before the offer was made and whether it was more than previously believed.

The court held that the Deputy Registrar's decision to not award the costs of assessment was within the discretion provided under rule 722. However, the court found that the defendants, rather than the plaintiff, should be liable to pay the court's assessment fee. This change in liability was made when it appeared that more work had been done before the offer was made than previously believed. Consequently, the court upheld the Deputy Registrar's decision with the modification that the defendants should bear the court's assessment fee.

Orders