Robinson v Westpac Life Insurance Services Limited (No 2)

[2017] QDC 58

DISTRICT COURT OF QUEENSLAND

CITATION:

Robinson & Anor v Westpac Life Insurance Services Limited (No 2) [2017] QDC 58

PARTIES:

SCOTT ROBERT ROBINSON
(first plaintiff)

and

MICHELLE ROBINSON
(second plaintiff)

v

WESTPAC LIFE INSURANCE SERVICES LIMITED
(defendant)

FILE NO/S:

2633/2011

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

15 March 2017

DELIVERED AT:

Brisbane

HEARING DATE:

Written submissions by the plaintiff dated 8 March 2017

Written submission by the defendant dated 1 March 2017

JUDGE:

Smith DCJA

ORDER:

1.   I make no order as to costs as to the application filed on 16 December 2016.

2.   I order the plaintiffs pay the defendant 50% of the defendant’s costs of and incidental to the application filed on 12 January 2017 as agreed or assessed on the standard basis. 

CATCHWORDS:

COSTS – Whether should follow the event – whether a proportion should be paid

COUNSEL:

Mr M. Alexander for the plaintiff

Mr K. Holyoak for the defendant

SOLICITORS:

Maurice Blackburn Lawyers for the plaintiff

Cooper Grace Ward Lawyers for the defendant

1. This is the costs decision as a result of the decision given in Robinson & Anor v Westpac Life Insurance Services Limited.[1]

   [1][2017] QDC 40.

1. The plaintiffs submit that they be ordered to pay 25 percent of the defendant’s costs on the standard basis or alternatively the costs be reserved.  It is submitted that in this matter the defendant had some success but the plaintiff also had some success.  It is submitted that the plaintiff was arguably more successful than the defendant and that an interlocutory costs order will prejudice the parties’ ability to resolve a matter. 

1. The defendant, on the other hand, submits that the appropriate order is that the plaintiff pay the defendant’s costs of the application filed on 16 December 2016 on the standard basis and the plaintiff pay 50 percent of the defendant’s costs of the cross-application filed 12 January 2017 on the standard basis.  It is submitted that the plaintiffs were wholly unsuccessful with respect to their application and should have to pay the costs.  It is further submitted that the defendant succeeded in striking out eight individual allegations in the plaintiffs’ pleadings but did not succeed in relation to three.  In those circumstances, it is submitted that the cost orders proposed by the defendant are reasonable. 

Disposition

1. Rule 681 of the Uniform Civil Procedure Rules 1999 (Qld) provides:

General rule about costs

(1) Costs of a proceeding, including an application in a proceeding, are in the discretion of the court but follow the event, unless the court orders otherwise.

(2) Subrule (1) applies unless these rules provide otherwise.

1. Further, r 684 provides: 

Costs of question or part of proceeding

(1) The court may make an order for costs in relation to a particular question in, or a particular part of, a proceeding.

(2) For subrule (1), the court may declare what percentage of the costs of the proceeding is attributable to the question or part of the proceeding to which the order relates.

1. It is to be noted that r 682(1)(b) provides that the costs a court may order “must be decided in accordance with this chapter”.  Rules 681 and 684 appear in the same chapter as r 682. 

1. The usual rule is that cost of a proceeding follow the event.  Generally, a successful party is entitled to an award of costs in its favour.[2] 

   [2]Murdoch v Lake [2014] QCA 269 at [19].

1. In Hughes v Western Australian Cricket Association (Inc),[3] Toohey J held: 

“1. Ordinarily, costs follow the event and a successful litigant receives his costs in the absence of special circumstances justifying some other order.

2. Where a litigant has succeeded only upon a portion of his claim, the circumstances may make it reasonable that he bear the expense of litigating that portion upon which he has failed.

3. A successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other party’s costs of them. In this sense, ‘issue’ does not mean a precise issue in the technical pleading sense but any disputed question of fact or of law.” 

[3][1986] FCA 382.

1. In my view, whilst the plaintiffs did pursue to an extent the issue concerning the certificate of readiness for trial it was a minor matter. It was only in response to that application that the defendant’s application was filed. It is appropriate to make no order as to costs concerning that application. 

1. It is my judgment that there was mixed success on the part of the defendant concerning its application filed 12 January 2017.  The defendant won some points but, on the other hand, the plaintiffs won some points. Ultimately though the plaintiffs have been required to re-plead.

1. It is my view that the plaintiffs should pay 50% of the costs of that application on the standard basis.   

1. In conclusion, my orders are as follows:

1.      I make no order as to the costs concerning the application filed on 16 December 2016. 

2.      I order the plaintiffs pay the defendant 50% of the defendant’s costs of and incidental to the application filed on 12 January 2017 as agreed or assessed on the standard basis.