Smith v MurphySchmidt Solicitors

[2020] QCA 295

SUPREME COURT OF QUEENSLAND

CITATION:

Smith v MurphySchmidt Solicitors [2020] QCA 295

PARTIES:

KELLY JO SMITH
(appellant/applicant)
v
MURPHYSCHMIDT SOLICITORS
ABN 39 191 079 108
(respondent)

FILE NO/S:

Appeal No 7503 of 2020
DC No 328 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Miscellaneous Application - Civil

ORIGINATING COURT:

District Court at Southport – [2020] QDC 114 (Kent QC DCJ)

DELIVERED ON:

18 December 2020

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGE:

Morrison JA

ORDERS:

1.   Application refused.

2.   The applicant pay the respondent’s costs of the application.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – OVERRIDING PURPOSE OF AND OBLIGATIONS UNDER RULES OR ACTS REGULATING CIVIL PROCEEDINGS – where the applicant/appellant seeks orders requiring the respondent to comply with obligations pursuant to Uniform Civil Procedure Rules 1999 (Qld) and paragraph 16 of Practice Direction 3 of 2013 – where the parties agreed for the matter to be heard on the papers – whether the application should be granted

Uniform Civil Procedure Rules 1999 (Qld), r 757

COUNSEL:

The applicant appeared on her own behalf
R C Morton for the respondent

SOLICITORS:

The applicant appeared on her own behalf
McInnes Wilson Lawyers for the respondent

1. MORRISON JA:  The applicant suffered significant injury when a gate at her work premises fell on her.  She made a claim for WorkCover benefits, and also damages at common law (under the Workers Compensation and Rehabilitation Act 2003 (Qld) against her employer, and under the Personal Injuries Proceedings Act 2002 (Qld) against the occupier of the relevant property).

2. The two claims settled and the applicant then executed a discharge on behalf of WorkCover.  Consequently, the settlement monies were distributed, and various statutory refunds and costs were deducted.  Those deductions were the subject of the applicant’s complaints below.  The applicant claimed below that the respondent (her legal representative at the time) was not entitled to deduct any of those amounts, and thus she sought their return.  She claimed from the respondent the sum of:

   (a)$38,201.45, the refund of statutory benefits to WorkCover;

   (b)$2,667.91, the Centrelink refund;

   (c)$1,838.30, the Medicare refund; and

   (d)$105,447.21, costs payable to the respondent.

3. The learned primary judge dismissed the claim and ordered the applicant to pay the respondent’s costs on the standard basis.

4. The applicant now appeals those orders in this Court.  For the purpose of this application, it is not necessary to discuss the grounds of the substantive appeal in any depth.

5. On 3 November 2020 the applicant filed an application seeking the following orders:

   1.That the respondent be ordered to comply with r 757 of the Uniform Civil Procedure Rules 1999 (Qld) (Affirmation on other ground), by filing and serving a Notice of Contention.

   2.That the respondent be ordered to submit an outline of argument that is compliant with Practice Direction 3 of 2013 paragraph 16.

   3.That the respondent be given 14 days after hearing this application to comply with these orders, and pay costs.

6. The parties agreed for the matter to be heard on the papers.

   Applicant’s submissions

7. The applicant also filed an affidavit sworn on 3 November 2020, in which she submits that the orders sought should be made because the respondent:

   (a)relies on grounds other than a ground relied on by the court below (here, the applicant cites appendices A and B of the respondent’s outline of argument, which refer to the Health and Other Services (Compensation) Act 1995 (Cth) and the Social Security Act 1991 (Cth)), and also transcripts;

   (b)repeats matters, namely authorities, set out in the applicant’s outline of argument; and

   (c)does not clearly identify which matters are disputed and which are not, in paragraph 16(b) of the respondent’s outline of argument.

   Respondent’s submissions

8. In respect of the first order sought, the respondent submits that it does not wish to file a Notice of Contention, and that one is not required because references to those Acts, referred to above at [7], are in response to citation of them in the appellant’s outline, and “to assist the Court to understand the requirement for that deduction from a compensation payment”.[1]

   [1]Respondent’s outline, para 3.

9. In respect of the second order sought, the respondent submits that that is plainly incorrect, and that paragraph 16(b) of the Practice Direction “does not require a Respondent to refrain from referring to a statutory provision just because the Appellant has referred to them.”[2]  The respondent further submits that “It follows clearly that everything in the Outline is in dispute and there are no matters to be “clarified” as not being in dispute.”[3]

   [2]Respondent’s outline, para 7.

   [3]Respondent’s outline, para 9.

   Notice of Contention

10. Rule 757 Uniform Civil Procedure Rules relevantly provides:

    “(1)If a respondent intends to contend a decision should be affirmed on a ground other than a ground relied on by the court that made the decision, the respondent must file a notice of contention stating briefly and specifically the grounds of the contention. …”

11. It is true that the applicant refers, in her outline, to s 1184 of the Social Security Act 1991 (Cth), and a Medicare notice of settlement. The Medicare notice of settlement refers to ss 23, 33A and 33B of the Health and Other Services (Compensation) Act 1995 (Cth). The applicant also refers to s 26 of the Health and Other Services (Compensation) Act 1995 (Cth) in paragraph 7 of her Notice of Appeal.

12. Appendices A and B of the respondent’s outline provide explanations of relevant sections of the Acts, which provide for refunds to the Commonwealth where a benefit has been paid to a compensable person.  I accept that their purpose was to assist the Court.

13. It is true that the respondent cites the transcript of the proceedings below in footnotes 9, 25, and 28 to 32 of its outline.  It does not follow that those references to the transcript support a contention by the respondent that the judgment below should be affirmed on grounds other than those relied on by the learned primary judge.  The references merely support statements about the parties’ conduct in the proceedings below, which are not relied upon to affirm the judgment below.

14. For those reasons, it is clear that the respondent does not rely on grounds other than those relied on by the learned primary judge to affirm the decision below.  Therefore, the respondent is not required to file a notice of contention.

    Practice Direction 3 of 2013

15. Paragraph 16 of Practice Direction 3 of 2013 (“PD 3/13”) relevantly provides:

    “16.A respondent's written outline of argument must:

    a)not repeat matters set out in an appellant's written outline;

    b)clarify those matters which are not in dispute; …”

16. It is true that sections of the Acts (referred to above at [7]) are listed in the list of authorities of both the applicant and respondent.  However, I do not accept that that contravenes paragraph 16(a) of Practice Direction 3 of 2013.  A list of authorities is a list of the cases and legislation that each party will rely upon and refer to in the hearing.  It is unsurprising, inevitable even, that parties will refer to the same cases and legislation.

17. The respondent’s outline contains a table in paragraph 38 that provides a response to each of the paragraphs in the applicant’s outline.  It is clear that all matters are in dispute.  Therefore, I do not accept that the respondent’s outline contravenes paragraph 16(b) of Practice Direction 3 of 2013.

    Costs

18. The applicant seeks costs of the application.  The respondent has made no submission on that aspect in response, but opposes the application.  Given that the applicant has been entirely unsuccessful, costs should follow the event.

    Conclusion

19. The orders are:

    1.Application refused.

    2.The applicant pay the respondent’s costs of the application.