Smith v O'Leary

DISTRICT COURT OF QUEENSLAND

CITATION:	Smith v. O’Leary & Anor [2001] QDC 197
PARTIES:	FREDERIC PETER SMITH (Plaintiff) v. GARY O’LEARY (First Defendant) And SUNCORP-METWAY INSURANCE LIMITED (Second Defendant)
FILE NO/S:	D4341 of 2000
DIVISION:
PROCEEDING:	Application
ORIGINATING	District Court Brisbane
COURT:
DELIVERED ON:	24 August 2001
DELIVERED AT:	Brisbane
HEARING DATE:	8 August 2001
JUDGE:	McGill DCJ
ORDER:	Application dismissed; no order as to costs
CATCHWORDS:	PRACTICE – non-party disclosure – application for order for disclosure not pursued after some documents disclosed – whether costs order should be made in favour of non-party – Uniform Civil Procedure Rules r.247(3)
Central Queensland Cement Pty Ltd v. Hardy [1989] 2 Qd.R. 509 – cited Ex parte Fielder Gillespie Ltd [1984] 2 Qd.R. 339 – cited
COUNSEL:	R.B. Dickson for the defendants R.J. Douglas SC and K.F. Holyoak for the respondents McInnes Wilson
SOLICITORS:	Hunt & Hunt for the defendants McInnes Wilson on their own behalf

1. This is a dispute about costs. On 7 June 2001 the defendants’ solicitors issued and served a notice of non-party disclosure directed to Messrs McInnes Wilson, Solicitors, who are the respondents to the application. The respondents filed objections to disclosure on 14 June 2001, and the defendants applied for a decision about the objections by application filed on 21 June 2001. Ultimately that application was not pursued when it came before me on 8 August 2001, but there was an argument about the costs of the application. The respondents sought the costs on the basis that the application had been abandoned, but the defendants said that the application was not pursued because further documents had been disclosed by the respondents after it had been filed, so that the defendants were now content with the documents the respondents had produced, and did not seek any departure from the prima facie position indicated by r.247(3), that each party to the application bear that party’s own costs.

Relevant rule

[2] Subrule 247(3) in its terms parallels the former r.693(1) dealing with the costs of an
application in the proceeding, which provided:

“Each party must pay the party’s own costs of an application in a
proceeding, unless the court orders otherwise.”

The purpose of the latter rule was to abolish a former rule, that the costs of an action included the costs of successful applications by the party who was successful in the action, unless the costs of those applications had been dealt with separately. This rule was not very well known, and had become something of a trap for the unwary. In July 2000 subrule 693(1) was substituted in terms which abolished that rule in a way which avoided any inference that the starting point when deciding how the costs of an interlocutory application are to be dealt with is that prima facie each party is to pay that party’s own costs. In respect of interlocutory applications generally, the approach in r.689, that costs follow the event unless the court considers another order is more appropriate, applies. At the…