Suncorp Metway Insurance Ltd v Dalley
[2006] QDC 297
•24/03/2006
DISTRICT COURT OF QUEENSLAND
CITATION: Suncorp Metway v Dalley [2006] QDC 297 PARTIES: SUNCORP METWAY INSURANCE LIMITED
(ACN 075 695 966)
Applicantv LISA MARIE DALLEY
RespondentFILE NO/S: 173/05 PROCEEDING: Application ORIGINATING COURT: Deputy Registrar DELIVERED ON: 24 March 2006 DELIVERED AT: Southport HEARING DATE: 6 February 2006 JUDGE: Newton DCJ ORDER: Application in respect of item 33 upheld. Counsel’s fees in respect of item 33 allowed in full. Items identified in paragraph 15 of this judgment to be returned to Deputy Registrar for re-consideration CATCHWORDS: COSTS – whether preparation of written submissions should be disallowed pursuant to paragraph 10 of Supreme Court Practice Direction 6 of 2004 Uniform Civil Procedure Rules 1999 COUNSEL: Mr D Reid for the applicant
Mr S J English for the respondentSOLICITORS: Suncorp for the applicant
Messrs Baker Johnson for the respondent
This is an application to review the decision of the Deputy Registrar of the District Court at Southport made on 11 November 2005, whereby the Deputy Registrar dismissed the objections of the applicant to the reconsideration of an assessment of its costs statement served in the subject proceedings.
The application is brought pursuant to the provisions of Rule 742(1) of the Uniform Civil Procedure Rules 1999 which enables a party dissatisfied with the decision of the registrar on reconsideration to apply to the court to review the decision.
The background to this application may be shortly stated. The applicant, Suncorp Metway Insurance Limited, was the second respondent to an application brought by the respondent, Lisa Marie Dalley, to commence proceedings despite the expiry of the limitation period in her claim for personal injuries arising out of a motor vehicle accident. The hearing of the respondent’s application took place before me on 3 May 2005. At this hearing the respondent’s solicitor was cross-examined.
On 20 May 2005 I made the following orders:
(1) that the applicant [Ms Dalley] be granted leave to issue a claim and
statement of claim;
(2) that the applicant and respondents attend a compulsory conference in
accordance with s 51A of the Motor Accident Insurance Act 1994;
(3) that the respondents not be required to enter a notice of intention to defence and/or defence until such time as the applicant and respondents have attended a compulsory conference in accordance with s 51A of the Motor Accident Insurance Act 1994.
So far as costs were concerned I stated:
“Although Mr Dickson, counsel for the respondents, has included in his written submissions that, in the event the application is allowed, it would be appropriate for costs to be paid by the applicant’s solicitors and on an indemnity basis, Mr Hackett, counsel for the applicant, has not included in his submissions any material with respect to costs. Accordingly, I will receive any written submissions as to costs from both counsel within 14 days of the date of this judgment.”
Subsequently I received written submissions dated 2 June 2005, 6 June 2005 and 9 June 2005 from counsel for the second respondent [Suncorp Metway] and 3 June 2005 and 8 June 2005 from counsel for the applicant [Ms Dalley].
In my decision as to costs delivered on 17 June 2005, I ordered the applicant [Ms Dalley] to pay the second respondent’s [Suncorp Metway] costs of and incidental to the application to be assessed on the standard basis.
On 2 August 2005 Suncorp Metway formally served an application for costs assessment and a costs statement on Ms Dalley in the sum of $8,383.75. The Deputy Registrar heard that application on 31 August 2005 and assessed Suncorp Metway’s costs at $3,492.70. On 27 October 2005 Suncorp Metway filed an application for reconsideration and served the same on Ms Dalley. The Deputy Registrar, on 11 November 2005, provided his written reasons for his decision on reconsideration and confirmed that his assessment of 31 August 2005 should stand.
In his written reasons the Deputy Registrar concluded that paragraph 10 of the Supreme Court Practice Direction 6 of 2004 applied in this case to disallow fees charged for the preparation of the written submissions on costs. Paragraph 10 states that:
“No additional charge is to be made for the preparation of a file index search, preparation of an outline, list of material or completion of an appearance slip.”
The Deputy Registrar in his reasons stated:
“It is the second respondent’s contention that I have confused the terms ‘outline’ and ‘written submission’. I do not agree. I have seen many outlines and written submissions and they all follow a similar format and page lengths of 3 to 5 pages. An outline covers the areas of argument that the writer believes the Court should take judicial note of in support of their client’s application or in opposition to an application. It outlines the case law to be relied upon and how that case law refers to the current application. Perusal of the submissions made by the counsel for the second respondent indicates to me that this can also be seen as an outline of argument. As the definition above indicates, preparation includes things done to make ready. In this case it would include all things done for the preparation of making the submission.”
The term “outline” is not defined in Practice Direction 6 of 2004. Some assistance may be derived from the definition provided by the New Shorter Oxford English Dictionary (Clarendon Press Oxford 1993) at p 2039:
“a. The main features or general principles of a subject.
b. A usu. brief verbal description giving a general idea of a whole; a summary, a rough draft.”
In my view the written submissions on costs furnished by Mr Dickson in response to my written invitation do not sit at all comfortably with the above definition. They were not a summary or rough draft, nor were they restricted to providing the main features or general principles of the subject of costs generally or more specifically to the matters in question. The written submissions were, in truth, the complete argument as to costs advanced on behalf of Suncorp Metway. They were provided in lieu of oral submissions. They were not in outline form but rather comprised all that would have been stated had the parties been put to the additional cost of a further court hearing. It should be added that when I indicated in my judgment of 20 May 2005 that I would receive written submissions as to costs, I did not say that I would receive outlines, summaries or rough drafts. I expected that counsel would provide their arguments and contentions in relation to costs in full detail in writing. They did so. In particular, I accept that Mr Dickson did not restrict his written submissions to the preparation only of an outline.
Had those responsible for the drafting of Practice Direction 6 of 2004 intended to include the preparation of written submissions in the list of terms for which no additional charge may be made, it would have been a straightforward and simple exercise to specifically say so. The failure of paragraph 10 to refer to written submissions as one of those matters for which no additional charge may be made indicates, to my mind, that it was intended to distinguish written submissions from an outline.
I note that the Deputy Registrar accepted that the application by Ms Dalley was complex and the fee claimed by counsel was not otherwise excessive except for the fact that the Deputy Registrar reduced the fees allowed for the preparation of written submissions due to the Practice Direction. Accordingly, in my view, the claim for counsel’s fees in respect of item 33 should be allowed in full.
The conclusions that I have reached with respect to item 33 will affect most, if not all of the remaining items to which objections have been raised in terms of the Deputy Registrar’s decision. Rule 752(5)(c) of the Uniform Civil Procedure Rules 1999 enables the court to return any item in the costs statement to the Deputy Registrar for reconsideration, whether with or without directions to that officer. In the circumstances of this matter it seems to me appropriate to return the following items in the costs statement to the Deputy Registrar for reconsideration in the light of the conclusions reached by me in relation to item 33:
Items 47, 53, 55, 56, 57, 68, 69, 70, 78;
44, 45, 48, 49, 50, 51, 52;
79;
80, 81, 82;
105;
106, 107, 108, 109, 110, 111, 116.
Item 54 is not to be reconsidered following a concession by Mr Reid.
The conclusions of the Deputy Registrar will determine the orders to be made in relation to the cost assessment, the application for reconsideration, the review and the further reconsideration.
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