Smith v Topp

[2005] QDC 3

DISTRICT COURT OF QUEENSLAND

CITATION:

Smith v Topp & Ors [2005] QDC 003

PARTIES:

BRUCE SMITH
(applicant/plaintiff)
v
JENNY TOPP
(first respondent/first defendant)
and
SUNCORP METWAY INSURANCE LIMITED
(ACN 075 695 966)
(second respondent/second defendant)
and
STEVEN JAMES JOHNSON and MICHAEL VINCENT BAKER trading as BAKER JOHNSON LAWYERS
(a firm)
(third respondent)

FILE NO/S:

D3766 of 2001

DIVISION:

Civil

PROCEEDING:

Chamber application

ORIGINATING COURT:

District Court

DELIVERED ON:

20 January 2005

DELIVERED AT:

Brisbane

HEARING DATE:

10 August 2004

JUDGE:

Tutt DCJ

ORDER:

1. The second respondent Suncorp Metway Insurance Limited pay the sum of $1,516.33 to the Registrar of the Magistrates Court at Brisbane in Proceeding No M7928 of 2002 to abide the order of the Court in the determination of that proceeding; and

2. That there be no order as to costs in respect of the current application filed in this Court on 29 July 2004.

CATCHWORDS:

Declaratory relief sort – claimed lien for costs after consent order filed.

Uniform Civil Procedure Rules (Qld) 1999 r 365.
District Court of Queensland Act (Qld) 1967 ss68 and 69.

COUNSEL:

Mr G J Dearlove for the applicant.

Mr P J Davis for the third respondent.

SOLICITORS:

McInnes Wilson for the applicant.

Russell & Company for the third respondent.

1. The current application before the Court in this proceeding was filed on 29 July 2004 wherein the applicant sought a number of orders including judgment pursuant to r 365 of the Uniform Civil Procedure Rules against the first and second respondents; declaratory relief in respect of the third respondent; such further orders as the Court may deem necessary and costs against the third respondent.

1. By the time the application came before this court on 10 August 2004 the applicant and second respondent (second defendant in the original proceeding) had consented to judgment by the Registrar pursuant to r 365 of the Uniform Civil Procedure Rules with that judgment being entered by the Registrar on 6 August 2004 in favour of the applicant against the second respondent in the sum of $7,176.80 together with a further order that the judgment sum be paid as subsequently directed by the court.

1. During the course of the hearing of this application at which the applicant and third respondent only were represented those parties agreed that of the judgment sum of $7,176.80, the sum of $5,660.47 be paid by the second respondent to the Trust Account of McInnes Wilson Lawyers thereby leaving the balance amount of $1,516.33 as the subject of further consideration and determination by this Court.

1. At the hearing submissions were made on behalf of the applicant and third respondent respectively which essentially concentrated upon the declaratory relief sought by the applicant as the other issues had been resolved either prior to or at the hearing.

1. It was the applicant’s contention that the third respondent did not have a valid lien for its costs over the amount for which the applicant’s claim for damages was compromised in January 2004 by which time the applicant’s current solicitors were acting for him or in the alternative if the third respondent (the applicant’s former solicitors) held a valid lien for its costs then that lien should be limited to the sum of $1,516.33 only.[1]

   [1] Page 13 of the transcript line 26.

1. The third respondent’s submissions at the hearing were:

(a)   that the third respondent held a valid lien for its professional work carried out for the applicant;

(b)   that it had never claimed a lien for funds “… over and above $1,516.33”;

(c)   that the applicant’s current application “… is clearly misconceived”;

(d)   that an order should be made for the sum of $1,516.33 to be paid into the Magistrates Court at Brisbane in the current proceeding in that Court under No M7928 of 2004 (a claim by the third respondent against the applicant for its professional costs in acting for the applicant in his claim for damages) thereby extinguishing any purported lien over those funds with the fate of that sum being determined at the time of the determination of the Magistrates Court action.

1. Subsequent to the conclusion of the hearing before me I received further submissions from the third respondent that in any event this court does not have jurisdiction to make the orders sought against the third respondent.

1. Reliance is made upon ss 68 and 69 of the District Court of Queensland Act 1967 which set out the jurisdictional parameters of this Court in its civil jurisdiction and the powers it has in exercising such jurisdiction.

1. It is further submitted on behalf of the third respondents that “… there is no action on foot in this Court caught by s 68(1)(a) or s 68(1)(b)”[2] as between the applicant and the third respondent and as such this Court has no jurisdiction to grant the declaratory relief sought by the applicant.

   [2] Further Written Submissions filed on behalf of third respondent at page 7.

1. In response to the supplementary submissions the applicant delivered further submissions essentially reiterating that this Court has the relevant jurisdiction and powers to grant the relief sought although those submissions do not appear to address specifically the issue raised by the third respondent in its supplementary submissions that it is not a party to proceeding No D3766 of 2001 before this Court.

1. It is obvious from the material filed in this application and the comprehensive submissions made at the hearing both orally and in writing that matters involving the applicant; the applicant’s wife and the third respondent firm of solicitors have had a chequered history generating much angst and disputation over a period of time which regrettably has influenced the parties and/or their respective solicitors to engage in protracted litigation in what has become, in reality, a relatively minor matter.

1. In my opinion the matter which now falls to be determined by this Court could have been simply resolved by the legal representatives of the applicant and third respondent respectivelyexercising a calm and practical approach to what should be done in respect of the question of what professional costs may be owing by the plaintiff to the third respondent in respect of any work carried out by the latter in the prosecution of the applicant’s consortium claim rather than become involved in a series of correspondence and litigious action over such a relatively small sum.

1. As I see the matter, in the circumstances which presently prevail the question of whether this Court has jurisdiction to order any declaratory relief against the third respondent is largely irrelevant and I do not propose to make a finding on that issue in the light of the manner in which I propose to determine this application.

1. I am of the opinion that the appropriate way to deal with what now remains of the application currently before the Court, having already partially dealt with paragraph 2 of the Consent Order of 6 August 2004 at the hearing of this application in respect of the sum of $5,660.47, is to order that the balance amount of $1,516.33 be paid to the Registrar of the Magistrates Court at Brisbane in Proceeding No M7928 of 2002 to abide the order of the Court in the final determination of that proceeding.

1. While it may be thought that this order coincides with those submissions made on behalf of the third respondent to this application, in the exercise of my discretion, I am not persuaded that either the applicant or the third respondent is entitled to its costs in respect of this application as I do not accept that the third respondent claimed a lien only in respect of the sum of $1,516.33 of the damages as contended at the hearing as various items of correspondence from the third respondent dating from 19 November 1998 to 13 February 2004 confirm that the claimed lien was over the whole of the settlement funds and it was obviously necessary for the applicant to take some action to resolve the impasse which had arisen.

1. My orders in this matter are therefore as follows:-

1.          I order that the second respondent Suncorp Metway Insurance Limited pay the sum of $1,516.33 to the Registrar of the Magistrates Court at Brisbane in Proceeding No M7928 of 2002 to abide the order of the Court in the determination of that proceeding.

2.          That there be no order as to costs in respect of the current application filed in this Court on 29 July 2004.