Stewart v Fehlberg & Anor (No.3)

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.

   [1][2008] QSC 292

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.

   [2]See Sheridan v Warrina Community Co-operative Ltd. [2004] QCA 308

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…