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

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

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.

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.

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

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.

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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sweeney v Attwood Marshall

Details

AGLC: Sweeney v Attwood Marshall [2002] QSC 294
Case: [2002] QSC 294
Decision Date: 11 September 2002

CaseChat Overview and Summary

The plaintiff, Sweeney, brought an action against the defendant, Attwood Marshall, in the Supreme Court, seeking damages for personal injuries sustained in a motor vehicle accident. The Supreme Court awarded Sweeney damages, but these were less than the upper monetary limit of the Magistrates Court. The plaintiff then applied to the District Court for an order that the defendant pay his costs on the District Court scale of costs. The defendant opposed the application on the grounds that the Supreme Court’s award of damages was beneath the Magistrates Court’s upper monetary limit, and that the discretion to award costs on the District Court scale should not be exercised in favour of the plaintiff.

The court had to determine whether, in exercising its discretion under rule 698(1) of the Uniform Civil Procedure Rules, it should award costs on the District Court scale in favour of the plaintiff, despite the Supreme Court’s award of damages being beneath the Magistrates Court’s upper monetary limit. The court considered the general rule that costs should follow the event, and whether there were any circumstances that warranted departing from this general rule. The court noted that the upper monetary limit of the Magistrates Court was a relevant consideration, but not the only consideration. The court also had to consider the nature and complexity of the case, the conduct of the parties, and the amount of costs incurred by the plaintiff.

The court held that, in exercising its discretion, it should not depart from the general rule that costs should follow the event. The court found that the plaintiff’s damages were beneath the Magistrates Court’s upper monetary limit, and that there were no exceptional circumstances that warranted departing from this general rule. The court also noted that the plaintiff’s costs were reasonable and necessary, and that the defendant had not acted unreasonably in the conduct of the case. Accordingly, the court ordered that the defendant pay the plaintiff’s costs on the appropriate Magistrates Court’s scale of costs, which is scale E.

The court certified that the attendance of both counsel and solicitor during the trial was necessary, and gave 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 were unable to reach agreement that they were.

Orders

Orders of the court

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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