Smyth v McLeod

[2004] QSC 69

SUPREME COURT OF QUEENSLAND

CITATION: Smyth v McLeod & Ors [2004] QSC 069

PARTIES:	DAVID McDONALD SMYTH (Plaintiff) v BARBERA McLEOD (First Defendant) TRANSPORT ACCIDENT COMMISSION OF VICTORIA (Second Defendant) ESTATE OF TRACIE LUISE LEWIS (Deceased) (Third Defendant) MMI GENERAL INSURANCE LIMITED (Fourth Defendant)
FILE NO/S:	123 of 1999
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court, Cairns
DELIVERED ON:	29 March 2004
DELIVERED AT:	Cairns
HEARING DATE:	2 December 2002
JUDGE:	Jones J
ORDER:	1. The plaintiff pay the defendants’ costs to be assessed on the standard basis in respect of applications where costs were reserved on 19 March 2002, 15 May 2002 and 5 August 2002. 2. The first and second defendants pay the plaintiff’s costs of and incidental to the action to be assessed on the standard basis. 3. Save for the matters in respect of which costs were reserved, the first and second defendants pay the third and fourth defendants costs of the proceedings, including the costs of contribution proceedings, to be assessed on the standard basis.
CATCHWORDS:	PROCEDURE – COSTS – COSTS FOLLOW THE EVENT
COUNSEL:	Mr M Glen for the plaintiff Mr T Matthews for the first and second defendant Mr R C Morton for the third and fourth defendants
SOLICITORS:	McDonnells for the plaintiff Quinlan Miller & Treston for the first and second defendants. McInness Wilson for the third and fourth defendants.

1. In response to my direction at the time of pronouncing judgment in this matter, each of the parties has made written submissions on the issue of costs of the action, including reserved costs. 

1. Costs were reserved on six occasions during the course of the proceedings.  I shall deal with those costs as follows:-

24 July 2000:

The plaintiff applied to join the third and fourth defendants as parties to the action.  This followed the delivery of the defence of the first and second defendants which denied liability for the collision.  The application followed an exchange of correspondence concluding on 27 June 2000. That necessitated, in my view, the joinder of the third and fourth defendants.  I am satisfied that the joinder was properly considered in anticipation of the dispute between defendants and it was done to facilitate that issue being determined without adverse consequences for the plaintiff.  The costs incurred in this application should follow the event.

19 March 2002:

This was an uncontested adjournment of the trial initiated by the second respondent because of the plaintiff’s late disclosure of an economic loss claim.  The plaintiff had recently retained new solicitors and so the adjournment was not opposed.  In all the circumstances the defendants’ costs thrown away by the adjournment should be paid by the plaintiff.

15 May 2002:

This application made by the second defendant was based on the plaintiff’s failure to provide documentation in support of a claim for economic loss.  This allowance was the most significant element of the plaintiff’s claim and the defendant was clearly entitled to have supporting documents.  The plaintiff ought to pay the defendant’s costs thrown away by the adjournment.

5 August 2002:

This was an application for an adjournment at the request of the second defendant because of the late delivery of the expert engineer’s report.  Again, this evidence went to a critical matter and required timely delivery of the report.  The failure to do so means that the plaintiff ought to pay the defendant’s costs thrown away by the adjournment.

26 November 2002:

This was an application by the plaintiff for leave to rely upon an accountant’s report notwithstanding non-compliance with r 423 of UCPR.  The granting of leave did not cause difficulty for the defendants because it was known at that time that the hearing could not be completed within the allocated trial dates.  In those circumstances there were no significant costs incurred by the defendants in responding to that application.

3 December 2002:

This was an application made on the second day of trial because of the late delivery of engineers’ reports and the lack of proper exchange between engineers who had been ordered to confer.  This fact led to further orders for the exchange of reports but it did not particularly add to the length of the hearing.  No specific costs order is required in respect of this adjournment which was simply part of the costs of determination of the issues at trial.

1. In summary then with respect to reserved costs I propose to order that the plaintiff pay the defendants’ costs which were reserved on each of the following dates - 19 March 2002, 15 May 2002 and 5 August 2002.

1. In relation to the costs of the trial the plaintiff has been successful in his action against the first and second defendants and the order for his costs should follow the event (UCPR r 689).

1. The third and fourth defendants have been successful on the issue between them and the plaintiff and also in respect of the contribution proceedings between defendants.  Consequently the third and fourth defendants are entitled to an order for costs.  The question then arises whether those costs should be borne by the plaintiff or by the first and second defendants.  Before joining the third and fourth defendants, the  plaintiff’s solicitors made direct response to the solicitors for the third and fourth defendants explaining that with limitation fast approaching they intended to adjoin unless the first and second respondents admitted liability.  In an exchange of correspondence between the respective solicitors for the defendants the first and second defendants made it clear that liability was significantly in dispute and they intended themselves instituting proceedings against the third and fourth defendants.[1]  Significant amongst this correspondence is a letter to the plaintiff’s solicitors from the third and fourth defendants’ solicitors stating –

“Liability is not admitted in this proceeding.  Liability is significantly in dispute.  We believe it is appropriate for the plaintiff to join MMI as a party to the proceedings.  We will be issuing a Notice claiming Indemnity and Contribution against MMI in that regard.”[2]      

[1]See affidavit Grant Dearlove filed 22 March 2004

[2]Ibid ex “GJD-3”

1. Having determined that the third and fourth defendants were properly joined and the liability issue between defendants was fully litigated it seems to me that the first and second defendants should pay the costs of the successful parties.  The correspondence exhibited to the affidavit of Mr Dearlove [supra] makes clear that the plaintiff did all that could be expected to avoid the joinder of the third and fourth defendants.  The plaintiff, in the circumstances known to him, could not be expected to make an adjudication between the defendants in those circumstances.  I reject the submission made by Mr Matthews that the plaintiff ought to have limited the ambit of the persons sued initially when those persons denied liability and proceeded to contest the allegation on the basis that the third and fourth defendants were wholly responsible for the collision.

1. It seems to me that a Sanderson order is the most appropriate form in which to pronounce orders.

Orders

1. I make orders that:-

1.          The plaintiff pay the defendants’ costs to be assessed on the standard basis in respect of applications where costs were reserved on 19 March 2002, 15 May 2002 and 5 August 2002.

2.          That the first and second defendants pay the plaintiff’s costs of and incidental to the action to be assessed on the standard basis.

3.          Save for the matters in respect of which costs were reserved, I order that the first and second defendants pay the third and fourth defendants costs of the proceedings, including the costs of contribution proceedings, to be assessed on the standard basis.