Simpson v Grundy (No 2)

[2011] QSC 329

SUPREME COURT OF QUEENSLAND

CITATION:	Simpson v Grundy & Anor (No 2) [2011] QSC 329
PARTIES:	DEBBIE-JO SIMPSON (plaintiff) v LINDSAY GRUNDY (defendant)
FILE NO/S:	12752 of 2009
DIVISION:	Trial
PROCEEDING:	Costs Application
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	9 November 2011
DELIVERED AT:	Brisbane
HEARING DATES:	On the Papers
JUDGE:	Dalton J
ORDER:	The plaintiff pay the defendant’s costs of and incidental to the proceeding on a standard basis to be assessed or agreed.
COUNSEL:	Mr G Mullins for the plaintiff Mr S C Williams QC with Mr E J Williams for the defendant
SOLICITORS:	Shine Lawyers for the plaintiff Jensen McConaghy for the defendant

1. DALTON J:  I delivered judgment in this matter on 6 October 2011.  I found for the defendant on the basis that the plaintiff had established no breach of duty in a negligence case.  The matter wsas one where the factual circumstances contended for by the plaintiff’s side conflicted with those contended for by the defendant’s side.  In the end I rejected most of the evidence called by the defendant’s side on credit grounds.  I found that the facts were in accordance with the evidence given by the plaintiff’s parents.  However on the facts as I found them, no breach of duty was established.  I expressed considerable reservations as to the evidence of both the plaintiff and her brother, also on credit grounds.  I invited submissions as to costs in these circumstances.

1. Under r 681 of the Uniform Civil Procedure Rules 1999 costs are in the discretion of the Court, “but follow the event, unless the court orders otherwise.” I have regard to the reasoning of the High Court in Oshlack v Richmond River Council[1] as to the purpose of, “the usual order as to costs.”  I also have regard to cases such as Kitching & Anor v Queensland Commissioner of Police[2] as to the difficulties attending making costs orders as to severable issues.

   [1](1998) 193 CLR 72.

   [2][2010] QSC 443.

1. In this case I made credit findings against witnesses on both sides of the record.  It seems to me that even had the defendant’s side contended for a factual version of events in line with that which I have found to be correct, the plaintiff would nonetheless have continued with her action and the defendant would have incurred the costs of defending it.  There is nothing from which I could conclude that there would have been significantly less trial time, or significantly less interlocutory cost in the proceeding.  I order that the plaintiff pay the defendant’s costs of and incidental to the proceeding on a standard basis to be assessed or agreed.