Shapcott v W.R. Berkley Insurance (Europe) Limited (No 2)
[2015] QDC 120
•22 May 2015
DISTRICT COURT OF QUEENSLAND
CITATION: | Shapcott v W.R. Berkley Insurance (Europe) Limited & Anor (No 2) [2015] QDC 120 |
PARTIES: | RAYMOND JOHN SHAPCOTT v W. R. BERKLEY INSURANCE (EUROPE) LIMITED (ABN 811 264 836 81) (TRADING AS W. R. BERKLEY INSURANCE (AUSTRALIA)) and PAUL CAMAC |
FILE NO: | 1323/15 |
DIVISION: | Civil |
PROCEEDING: | Originating Application |
ORIGINATING COURT: | District Court, Brisbane |
DELIVERED ON: | 22 May 2015 |
DELIVERED AT: | Brisbane |
HEARING DATE: | On the papers |
JUDGE: | Dorney QC DCJ |
ORDER: | 1. It is ordered that the applicant pay the respondents’ costs of the Originating Application filed 1 April 2015. |
CATCHWORDS: | Costs – seeking Court’s indulgence |
LEGISLATION CITED: | Uniform Civil Procedure Rules 1999, r 682(1), r 682(2), r 686. |
CASES CITED: | Cox v Mosman [1908] St R Qd 210 Stanley v Layne Christensen Company [2006] WASCA 56 |
COUNSEL: | J Morris SC for the Applicant R S Ashton for the First and Second Respondents |
SOLICITORS: | Hayes Gabriel Lawyers for the Applicant Moray & Agnew Lawyers for the First and Second Respondents |
Introduction
On 12 May 2015, after making orders concerned with the substantive parts of Originating Application, I gave leave to all parties to file, and serve, written submissions on costs. That has now been done by both the applicant and the respondents.
In the reasons delivered on 12 May 2015, I intimated that I intended (subject to being persuaded otherwise by written submissions) to order that the costs of the Originating Application be paid by the applicant to the respondents, given the “out of time” indulgence and the dismissal of the orders sought for consequential directions: at [62].
Applicant’s submissions
Besides seeking that the respondents pay his costs, the applicant has sought three further, alternative, orders. The first of those alternatives is an order that costs be the parties’ costs on the cause. The second is that each party bear its own costs. And the third is that if the applicant is ordered to pay the respondents’ costs, they be assessed at the conclusion of the proceeding, or at or after settlement, whichever first occurs.
Under the Uniform Civil Procedure Rules 1999 (“UCPR”), the Court has power to award costs at any stage of the proceeding and costs are ordinarily assessable at the time of the order, unless an order is a made to make them assessable at the conclusion: see r 682(1), r 682(2) and r 686.
The applicant contended that the delay was occasioned in a context of complex litigation, referring to certain specific events that had occurred. He also referred to three offers prior to the application being filed which attempted to resolve the issue, noting that they were all rejected.
After referring to the primary objective being to obtain the leave of the Court to issue the Contribution Notice, the applicant has asserted that, had there been consent for the late Contribution Notice, then the applicant would not have brought the additional disputes to court. The indulgence which was sought was addressed by the applicant submitting that it was always open to the respondents to avoid the costs by giving consent and therefore, in refusing the consent, they took a risk on costs.
With respect to costs in the cause, it was submitted that there are some practical reasons for making such an order because, if the policy of insurance were to be found to respond, then the costs for seeking indemnity would be recoverable by the applicant, including the costs of this application.
Respondents’ submissions
Unsurprisingly, the respondents have adopted, at the core of their submissions, what I had indicated as my intention.
Nevertheless, they did submit that the usual practice – acknowledging, though, that the judicial discretion is ultimately unfettered – is that, where a party is seeking an indulgence from a court, that party will be required to pay the costs of the application, relying, amongst other authoritative sources, on Cox v Mosman[1] at 214. With respect to the failure by the applicant in respect of the other orders sought, it is contended that this is a proper matter to be taken into account as support for the proposed orders to costs.
[1] [1908] St R Qd 210.
Determination
In Stanley v Layne Christensen Company,[2] it was observed by Wheeler JA, with respect to matters of indulgence, that it might well be a significant factor whether a party who was acting reasonably should have considered consenting to such an order. That observation was made in the course of considering an amendment which added a substantial and different, but apparently arguable, cause of action.
[2] [2006] WASCA 56.
The application in this case was, as I noted, a hitherto unresolved issue concerning an important Act that deals with personal injury proceedings in Queensland. Furthermore, the application was an application which sought leave despite the lapse of a not insignificant period of time (even though, in the end, the indulgence was granted despite that lapse).
In such circumstances, the respondents were entitled to have the issue resolved and I do not conclude that the respondents were acting unreasonably in not consenting to appropriate orders.
The factor that the applicant was not successful on any consequential orders is a further reason why it would not have been reasonable to simply consent to the orders sought, even though those consequential orders were, in relative terms, less dominant.
Overall, I see no reason to change the intention that I had originally indicated with respect to costs. In particular, there is no other “cause” here, since this Originating Application has now been determined and any other proceeding will be conducted by way of a discrete proceeding.
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