Sinclair v Caloundra Sub-Branch RSL Services Club Inc

[2001] QDC 288

DISTRICT COURT OF QUEENSLAND

CITATION:	Sinclair v. Caloundra Sub-Branch RSL Services Club Inc [2001] QDC 288
PARTIES:	MATTHEW JOHN SINCLAIR (Plaintiff) v. CALOUNDRA SUB-BRANCH RSL SERVICES CLUB INC (Defendant)
FILE NO/S:	D317/99
DIVISION:
PROCEEDING:	Trial
ORIGINATING COURT:	District Court Maroochydore
DELIVERED ON:	9 November 2001
DELIVERED AT:	Brisbane
HEARING DATE:
JUDGE:	McGill DCJ
ORDER:	Order that the defendant pay the plaintiff’s costs of the action to be assessed. Order that the costs of the application to reopen be costs in the cause.  Certify for counsel’s fees for 2 hour conference and for attendance on all days of the trial, and for attendance of instructing solicitor.
CATCHWORDS:	COSTS – Application to re-open case – whether costs to follow event of application or event of trial
COUNSEL:	M. Grant-Taylor SC for the plaintiff K. B. Varley for the defendant
SOLICITORS:	Boyce Garrick for the plaintiff Ebsworth & Ebsworth for the defendant

1. On 24 August 2001 I published reasons for judgment in this matter and invited submissions as to costs. It occurred to me that there might have been some relevant offer made under Part V of Chapter 9 of the Uniform Civil Procedure Rules, but I have not been informed of any such offer. In those circumstances, costs should follow the event, and indeed it was not argued to the contrary. Rule 698(2) applies; there is no reason for the court to order otherwise, and indeed I was not asked to do so on behalf of the plaintiff.

1. Accordingly, the costs are to be assessed in accordance with the Magistrates Court scale in Schedule 3 to the Uniform Civil Procedure Rules. Under item 6(g), counsel’s fees for attendance on days after the first day of the trial are allowable only if the appearance is certified for by the court. The matter was plainly one which required counsel on all days of the trial, and I so certify. I was also asked to certify for the attendance of a solicitor instructing counsel under Item 8(a). The structure of Item 8 appears to be that attendance of a clerk instructing counsel is allowable unless the court certifies that such attendance was not reasonably required, but the attendance of a solicitor is allowable only if certified for by the court. In the present case, the number of witnesses and the complexity of the matter in my opinion amply justified the assistance of a solicitor during the trial, and I think it clearly appropriate to certify under Item 8(a).

1. The defendant did not object to certification, but submitted that there were periods when the plaintiff’s solicitor was not in fact in court, and counsel was uninstructed.  That, in my opinion, is a matter for assessment rather than a question which goes to the certification.  I suspect that at least for part of the time the solicitor absent from the courtroom was still in the precincts of the court arranging witnesses and assisting the organisation of the trial.  In any case, that is a matter for assessment, not for certification. 

1. I was asked to certify for two hours of counsel’s conference under Item 6(d), on the basis that counsel’s conferring with witnesses for two hours was reasonably necessary.  In view of the extent of the evidence called on behalf of the plaintiff, the only thing I find surprising about this is that it was possible to keep the length of the conference down to two hours.  Two hours is certainly justified and I certify accordingly. 

1. The issue principally in dispute relates to the costs of the application by the plaintiff to reopen the trial for the purpose of leading further evidence in relation to the full video tape put in evidence (at my request) by the defendant.  The circumstances of that application are set out in para. 76-78 in my reasons for judgment on 24 August 2001.  The longer video tape only became an exhibit on 26 April 2001.  It was not available during the trial, and therefore its contents were not put to any of the witnesses.  That was not the result of any failing on the part of the defendant.  It was not the intention of the defendant to put the full tape in evidence, nor had the plaintiff sought to do so.  The case was being conducted on the basis that the shorter video tape contained a relevant extract.  When the longer video tape was first produced by the defendant, counsel for the plaintiff had not seen it, and it was therefore appropriate that counsel for the plaintiff have the opportunity to do so and to make submissions as to its admissibility, and that was dealt with on 26 April 2001, when the plaintiff’s application to reopen was heard.

1. Had the defendant been seeking to produce the longer tape without having put to the plaintiff’s witnesses during cross-examination or during the trial, the plaintiff would have been entitled to object to that course.  As things happened of course the plaintiff sensibly did not object to the admissibility of the tape, but in those circumstances it was reasonable for the plaintiff to seek to respond to this change in the way the defence case was being conducted by leading further evidence to try to exploit such advantage as was provided by the tape.  Ultimately the application to reopen was rejected, as I indicated previously, because I thought it not necessary or appropriate to do so;  that is to say, having viewed the video tape myself and examined it myself, it seemed to me that the issues in the action could be decided without receiving any further evidence the plaintiff wished to lead. 

1. It was necessary for me to consider the affidavit material as to the extent of that further evidence in order to be able to make that assessment, and that material provided some assistance to me, when viewing the full video tape, in locating relevant passages, although as I indicated in my reasons, I acted upon by assessment of what I saw in the video tape rather than what the affidavit or the letter from the plaintiff’s solicitors said was shown. 

1. In these circumstances, in my opinion, it was reasonable for the application to be made given the course of the trial, and the fact that it ultimately failed, on the ground that it was not necessary for further evidence to be given, it is not in my opinion a reason for depriving the plaintiff the costs of that application.  Those further costs were really made necessary by the course that the trial took, so they should be treated as part of the costs of the trial.  I had not dealt with the costs of that application at the time because I reserved my decision on that application, and the appropriate time to deal with those costs is now. Accordingly, I order that the costs of the application to reopen be costs in the cause. 

1. The order made as to costs are therefore:

1.          Order that the defendant pay the plaintiff’s costs of and incidental to the action to be assessed.

2.          Order that the costs of the plaintiff’s application to reopen on 26 April 2001 be costs in the cause. 

3. Certify for two hours conference of counsel under Item 6(d), for counsel’s attendance on subsequent days of the trial under Item 6(g) and for solicitors attendance instructing counsel under Item 8(a) of Schedule 3.