Sweeney v Attwood Marshall

[2002] QSC 294

SUPREME COURT OF QUEENSLAND

CITATION:

Sweeney v Attwood Marshall [2002] QSC 294

PARTIES:

PETER JOHN SWEENEY
(plaintiff)

v

ATTWOOD MARSHALL (a firm)
(defendant)

FILE NO/S:

S 1410 of 2002

DIVISION:

Trial Division

PROCEEDING:

Trial – Further Order

ORIGINATING COURT:

Supreme Court Brisbane

DELIVERED ON:

Judgment delivered 11 September 2002

Further Order delivered 27 September 2002

DELIVERED AT:

Brisbane

HEARING DATE:

26, 27, 28 August 2002

JUDGE:

Ambrose J

ORDER:

I order that the Defendant pay to the Plaintiff his costs to be assessed on the appropriate Magistrates Court’s scale of costs which is scale E. I certify that the attendance of both Counsel and Solicitor during the trial was necessary. I give liberty to apply for any necessary certificate that steps taken in respect of which scale E specifies a fee were reasonably necessary or proper in the event that the parties are unable to reach agreement that they were

CATCHWORDS:

COSTS – discretion – departing from the general rule – where damages awarded in Supreme Court beneath Magistrates Court upper monetary limit – whether discretion under r 698(1) Uniform Civil Procedure Rules to award costs on District Court scale should be exercised in favour of the plaintiff

Motor Accident  Insurance Act 1994 (Qld)
Uniform Civil Procedure Rules 1999 (Qld), r 690(3), r 690(4), r 690(5), r 690(6), r 698(1), r 698(2), r 698(3)
Workplace Health and Safety Act 1995 (Qld)

Hussey v Page [1973] Qd R 509, considered

COUNSEL:

G Forde for the plaintiff
K N Wilson for the defendant

SOLICITORS:

Quinn and Scattini for the plaintiff
McInnes Wilson for the defendant

1. AMBROSE J:  On 11 September 2002 I gave judgment for the Plaintiff against the Defendant in the sum of $10,000.

1. The Plaintiff brought his action against the Defendant for damages for professional negligence and also for damages for breach of duties owed to him under the Workplace Health and Safety Act 1995.

1. The Plaintiff advanced a case which had it succeeded on all issues would probably have resulted in his obtaining judgment for a sum well above the jurisdictional limitation in the District Court of $250,000.

1. However, for reasons delivered on 11 September 2002 the Plaintiff recovered judgment only for the sum of $10,000.

1. By oversight I indicated that I would make an order that he recover his costs on scale F of the Magistrates Court’s scale of costs. However, on reviewing the order that I did propose to make I notice that scale E is the scale appropriate for the recovery of damages within the range of $5,001 to $10,000.

1. Scale F is appropriate for an award of damages recovered in the Magistrates Court within the range $10,001 to $20,000.

1. Under UCPR 698(2) it is provided :-

“If the relief obtained by a plaintiff in a proceeding in the Supreme Court or District Court is a judgment that, when the proceeding began, could have been given in the Magistrates Court, the costs the plaintiff may recover must be assessed as if the proceeding had been started in the Magistrates Court.”

1. That general rule is subject to a discretion to make a different order under UCPR 698(1).

1. In this case the Plaintiff submits that I ought exercise my discretion under UCPR 698(1) and order that the Plaintiff recover his costs on the District Court scale.

1. In support of this contention, the Plaintiff points to the fact that the assessment of damages which the Plaintiff would probably have received had his action been properly commenced in any Court after the giving of a timely notice under the Motor Accident Insurance Act may well have been above the upper limit of the jurisdiction of the District Court. It is contended that the explanation for the Plaintiff’s recovering only $10,000 was the unpredictable assessment of contributory negligence found in arriving at the likely sum that the Plaintiff would have recovered had he been able to pursue his action for injury in a properly constituted action.

1. Such an approach in my view would be contrary to well established principle videHussey v Page [1973] Qd R 509. Whatever may be the explanation for the sum for which the Plaintiff received judgment it is clear that the judgment he recovered may have been recovered in an action commenced in the Magistrates Court which had a monetary jurisdiction up to and including $40,000.

1. In my view there is nothing exceptional in this case to warrant a departure from the general direction under UCPR 698(2).

1. An alternative submission advanced by the Plaintiff is based upon UCPR 690(5). That rule reads :-

“(5) If the nature and importance, or the difficult or urgency, of a proceeding and the justice of the case justify it, the court may allow an increase of not more than 30% of the solicitor’s costs allowed on the assessment of the costs of the proceeding.”

1. The Plaintiff contends that the nature and difficulty of the action conducted in this Court involving the complexity of a professional negligence action was such that it is appropriate that I order that an increase of 30% in the scale of fees be allowed.

1. The first thing to note about UCPR 690(5) is that it refers only to solicitor’s costs.

1. The second consideration in my view is that prima facie UCPR 690(5) relates to an exercise of discretion by a Magistrate when delivering judgment in an action brought within jurisdiction in the Magistrates Court.

1. In my assessment of the Plaintiff’s case there is nothing in its nature or importance or difficulty to distinguish it from any other case of professional negligence which the Magistrates Court has jurisdiction to entertain.

1. Moreover, the Court contemplated by UCPR 690(3)(4)(5) and (6) seems to be Magistrates Courts given a discretion to award costs in an amount up to 30% above the prescribed scale of costs. The rule seems to contemplate the Court before whom the action is conducted in determining whether the “justice of the case” justifies some increase above the scale costs – not to exceed 30%.

1. I have real reservations as to whether it is appropriate when applying UCPR 698(2) for this Court to purport to exercise a power which a Magistrate might have exercised under UCPR 690(5) had the case been conducted in that Court. However, had the proceedings been commenced in the Magistrates Court resulting in recovery for $10,000 an application could have been made to the Magistrate under UCPR 690(5) for an increase in costs up to 30% higher than the scale fees to which the solicitor was entitled.

1. I have further reservations, as a matter of construction of UCPR 609(5)and 698(2), as to whether the power given to a Magistrate under UCPR 690(5) may be translated into a power of a Judge in this Court obliged to apply UCPR 698(2) to exercise a discretion of the sort that a Magistrate may exercise in respect of an action heard by him or her.

1. One of the obvious objects of UCPR 698(2) and (3) is to penalise in costs persons who institute proceedings in this Court in which they ultimately recover an award of damages within the jurisdiction of either the District Court or the Magistrates Court. While this Court has an unlimited monetary jurisdiction, UCPR 698 contemplates the application of (2) and (3) of that rule unless something exceptional justifies departure from those general rules.

1. There is nothing unusual or exceptional in this case which persuades me to depart from the general rule in UCPR 698(2).

1. Even if I were empowered under UCPR 698(2) to make an order which a Magistrate is empowered to make under UCPR 690(5) I am unpersuaded in the circumstances of this case that it would be appropriate to make such an order. 

1. I order therefore that the Defendant pay to the Plaintiff his costs to be assessed on the appropriate Magistrates Court’s scale of costs which is scale E. I certify that the attendance of both Counsel and Solicitor during the trial was necessary. I give liberty to apply for any necessary certificate that steps taken in respect of which scale E specifies a fee were reasonably necessary or proper in the event that the parties are unable to reach agreement that they were.