O'Connor v Brisbane City Council (No. 2)

[2013] QDC 158

DISTRICT COURT OF QUEENSLAND

CITATION:

O’Connor v Brisbane City Council (No. 2) [2013] QDC 158

PARTIES:

EDWARD JAMES O’CONNOR

(Plaintiff)

and

BRISBANE CITY COUNCIL

(Defendant)

FILE NO/S:

1224/2010

DIVISION:

PROCEEDING:

Judgment

ORIGINATING COURT:

District Court

DELIVERED ON:

24 June 2013

DELIVERED AT:

Brisbane

HEARING DATE:

24 June 2013

JUDGE:

Samios DCJ

ORDER:

1. The defendant pay the plaintiff’s costs of the proceedings from the commencement to the 9^th of May 2012, on the District Court scale to be assessed on the standard basis, and then on the indemnity basis and including the reserved costs of 23 May 2012 from the 9^th of May 2012.

CATCHWORDS:

COSTS- where the costs of the proceedings were not commenced in the wrong court- where the proceedings commenced in the correct court- where proceedings were unusual and complex proceedings.

LEGISLATION

Uniform Civil Procedure Rules r 697

COUNSEL:

Ms Marks for the plaintiff

Mr Musgrave for the defendant

SOLICITORS:

Gabriel Ruddy & Garrett for the plaintiff

King & Co for the defendant

1. In this matter I give judgment for the plaintiff against the defendant for the sum of $56,011-04, and I publish my reasons.

1. The question of costs in this matter raises a number of issues. The judgment I have given is for $56,011.04. The plaintiff made an offer in March of 2010 to be paid $55,000 and costs on a standard basis. The damages I have assessed are below that offer. However, the plaintiff made an UCPR offer on the 9^th of May, 2012 for $50,001 and costs on the standard basis.  Clearly the judgment I have given is better than that offer.  However, the proceedings I note were commenced by claim and statement of claim filed in this court on the 22^nd of April, 2010.  As I understand it that was within the jurisdiction of the District Court at that time.  The jurisdiction then changed as from the 1^st of November 2010, however, the proceedings remained in the District Court.  A number of submissions have been made to the effect that from certain dates to certain dates there be Magistrates Court costs, and then after that there be indemnity costs. 

1. There has also been a submission that I should take into account some delay on the part of the plaintiff providing documents regarding the stent operation he underwent in 2012. I am not persuaded there was any fault on the part of the plaintiff in that respect, it was something that occurred to him, and in the natural course of his life that just necessitated the matter being delayed so the defendant could investigate it. As I see it I do not think that that should detract from the order of costs that I should make in the plaintiff’s favour. I do note that the rules, in particular rule 697 of the UCPR deals with costs of a proceeding in the wrong court. I am satisfied these proceedings were not in the wrong court either because they were commenced in the correct court, or that they were unusual and complex proceedings. They were unusual in the sense that they were not proceedings arising out of the collision of motor vehicles or an employee suing an employer for damages, they were a proceeding by a bicyclist coming to grief on a hazard constructed by the council. They were complex because there were a number of witnesses called by the plaintiff; they expressed themselves differently as to what they observed, but the defendant, in its defence, raised the complexities, that there was no duty of care, there was no breach of duty of care, that the plaintiff was guilty of volenti non fit injuria, that the plaintiff was guilty of contributory negligence, that the plaintiff breached two road regulations, and that the plaintiff should be denied damages because of breaches of four sections of the Civil Liability Act.

1. There were witnesses called by the council, the evidence had to be assessed in relation to that called by the plaintiff and that called by the defendant.  There was also an issue about whether a photograph correctly identified the repairs as they were at the date the plaintiff suffered injury.  It is to some extent embarrassing for a District Court judge deciding proceedings were unusual and complex, and were justified being brought in the District Court, however that is the conclusion I reach in this case. 

1. Therefore the order I make in relation to costs is that: the defendant pay the plaintiff’s costs of the proceedings from commencement to the 9^th of May, 2012, on the district Court scale to be assessed on the standard basis, and then on the indemnity basis from the 9^th of May, 2012. 

1. In relation to the costs that were reserved on the 23^rd May 2012, I remain of the view that the plaintiff should have those costs.  It appears to me the adjournment was sought so that the defendant could seek other reports.  Those reports were not obtained.  In any event, I take it to be one of those matters which should be dealt with on the basis that costs follow the event.  They were costs that arose.  The plaintiff had a heart problem.  In the course of litigation these things happen, but, when it comes to who should pay, well, then, as the plaintiff has succeeded, I am of the view he should have his costs.

1. Therefore the orders that I’ve made will be amended so that after the word “indemnity basis” the words will be added “including the reserved costs of 23^rd May 2012”.  So the orders will be the defendant to pay the plaintiff’s costs of the proceedings from the commencement to 9 May 2012 in the District Court scale on the standard basis, and then on the indemnity basis and including the reserved costs of 23^rd May 2012 from 9 May 2012.