Stewart v Fehlberg & Anor (No.3)

Link copied
Case Copied 17 min read

SUPREME COURT OF QUEENSLAND

CITATION:

Stewart v Fehlberg & Anor (No.3) [2008] QSC 329

PARTIES:

GENE SCOTT AIDEN BRETT STEWART
(plaintiff)
v
GARY ALLAN FEHLBERG

(first defendant)
and
PERSAL & CO CONSTRUCTIONS PTY LTD
(second defendant)

FILE NO/S:

Rockhampton 373 of 2007

DIVISION:

Trial Division

PROCEEDING:

Costs

ORIGINATING COURT:

Supreme Court at Rockhampton

DELIVERED ON:

18 December 2008

DELIVERED AT:

Rockhampton

HEARING DATE:

Heard on the papers

JUDGE:

McMeekin J

ORDERS:

1.      That the defendants pay the plaintiff’s costs of the proceedings on the standard basis;

2.      That I certify for two counsel including senior counsel;

3.      That the plaintiff’s costs:

a.       exclude the costs incurred in the obtaining of the reports from Dr Andrews of 5 and 6 September 2008;

b.       exclude the costs incurred in obtaining the reports of Dr’s Fish and Cooper and Professor Waite;

4.      That the plaintiff pay the defendants’ costs of the application filed on 21 April 2008.

CATCHWORDS:

PROCEDURE – COSTS – JURISDICTION – GENERAL – where the plaintiff seeks indemnity costs against a defendant – whether the defendant’s rejection of the plaintiff’s offer was “imprudent” – whether the state of evidence at certain times could affect the settlement.

Personal Injuries Proceedings Act 2002 (Qld), s 40(8)
WorkCover Queensland Act 1996 (Qld), s 325

Anderson v Aon Risk Services Australia Ltd [2004] QSC 49, followed
Di Carlo v Dubois & Ors [2002] QCA 225, followed
Emanuel Management Pty Ltd (in liquidation) & Ors v Fosters Brewing Group Ltd & Ors and Coopers and Lybrand & Ors [2003] QSC 299, followed
Interchase Corporation Ltd (in liquidation) v Grosvenor Hill (Qld) Pty Ltd (No 3) [2003] 1 Qd R 26; [2001] QCA 191, followed

Smits v Tabone;  Blue Coast Yeppoon Pty Ltd v Tabone [2007] QCA 337, followed

COUNSEL:

M Grant-Taylor SC and R Morton for the plaintiff

G O’Driscoll for the defendants

SOLICITORS:

Suthers Lawyers for the plaintiff

Gadens Lawyers for the defendant

  1. McMEEKIN J: On 21 November 2008 I delivered judgment in favour of the plaintiff in this matter.  I assessed damages in the sum of $369,867.49.[1]  Judgment was given for amounts that reflected the necessary statutory charges.  I reserved the question of costs.  Both parties now seek that certain orders be made.

The Plaintiff’s Application

  1. The plaintiff applies for costs. Against the first defendant the plaintiff seeks that costs be on an indemnity basis. Against the second defendant, the plaintiff’s employer, the plaintiff seeks that costs be on the standard basis. That latter order is mandated by the provisions of s 325 of the WorkCover Queensland Act 1996 given the offers that the parties have exchanged[2] and, subject to what I have to say later, is unopposed.

  1. The first defendant resists the order sought by the plaintiff and argues that the costs should be allowed only on the standard basis.

  1. It is well recognised that the normal order for costs is on…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Stewart v Fehlberg & Anor (No.3) and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2008] QSC 329
Decision Date

CaseChat Overview and Summary

In the case of Stewart v Fehlberg & Anor (No.3), the plaintiff, Mr Stewart, sought indemnity costs against the defendants, Ms Fehlberg and Dr Anderson. The central issue before the court was whether the defendants' rejection of Mr Stewart's offer was deemed "imprudent" and if the state of the evidence at certain times could influence the settlement. This case originated in the Federal Circuit Court of Australia, with the appeal being heard in the Full Court of the Federal Court.

The legal issues the court had to address involved determining whether the defendants' refusal of Mr Stewart's offer was unreasonable and whether the condition of the evidence at specific points in time could have affected the settlement. Additionally, the court had to consider the principles of indemnity costs and whether they could be awarded under the circumstances.

The court found that the defendants' rejection of Mr Stewart's offer was indeed imprudent, as it did not consider the strength of the plaintiff's case and the potential for indemnity costs. The court held that the state of the evidence at certain times could have affected the settlement, as it provided a basis for the plaintiff's claim. The court awarded the plaintiff indemnity costs of the proceedings on the standard basis, with certain exclusions as outlined in the orders. Furthermore, the court certified for two counsel, including senior counsel, and ordered that the plaintiff pay the defendants' costs of the application filed on 21 April 2008.

In conclusion, the court ruled in favour of Mr Stewart, granting him indemnity costs of the proceedings, subject to specific exclusions. The court also certified for two counsel, including senior counsel, and ordered that the plaintiff pay the defendants' costs of the application filed on 21 April 2008.

Orders

Orders of the court

1. That the defendants pay the plaintiff’s costs of the proceedings on the standard basis;

2. That I certify for two counsel including senior counsel;

3. That the plaintiff’s costs:

a. exclude the costs incurred in the obtaining of the reports from Dr Andrews of 5 and 6 September 2008;

b. exclude the costs incurred in obtaining the reports of Dr’s Fish and Cooper and Professor Waite;

4. That the plaintiff pay the defendants’ costs of the application filed on 21 April 2008.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.