Tamera v Roombridge Pty Ltd t/a Laguna Noosa

[2009] QDC 182

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No D288 of 2008

CAROLE AURORA TAMERA

Plaintiff

and

ROOMBRIDGE PTY LTD ACN 056 960 957 TRADING AS LAGUNA NOOSA

and

SUZANNE FULKOSKI

First Defendant

Second Defendant

MAROOCHYDORE

..DATE 19/06/2009

ORDER

CATCHWORDS

Uniform Civil Procedure Rules, 991 - leave to withdraw solicitors on record for applicant/claimant who had obtained leave to proceed under section 43 of the Personal Injuries Proceedings Act 2002 - client belatedly filed a notice of acting in person - whether statutory stay included the granting of leave - solicitors' costs not allowed, they (by arrangement) not having appeared.

HIS HONOUR: In this matter, under rule 991 of the Uniform Civil Procedure Rules, the Court makes an order pursuant to an application filed on the 29th of May 2009 that McColm Matsinger Lawyers are no longer the solicitors for the plaintiff, or applicant, and have leave to withdraw.

The order is rendered strictly unnecessary by the filing yesterday of a notice of a party acting in person. That gives an address for service of 54 Kestrel Crescent, Peregian Beach for the plaintiff. The application before the Court today, filed by the withdrawing solicitors, seeks an order that the plaintiff pay their costs. Upon my direction the Associate communicated to the firm that if (as proposed) they elected not to appear on the application, the Court would not make a costs order.

I find the circumstances somewhat odd in that the proceeding in the court is an originating application, notwithstanding that Ms Tamera is referred to as the plaintiff, in some places, seeking leave to commence a proceeding under section 43 of the Personal Injuries Proceedings Act 2002.

An order was made by Judge Robertson granting leave on the 4th of December, 2008. Although the order is silent about it, by virtue of the Act proceedings permitted to be commenced are stayed until the pre-litigation procedures required by the Act have been attended to, by section 43(3).

The originating application appears to me to have done its work, leaving me in some confusion as to why it is that the relief needed is sought. I would not regard the stay as precluding the Court's making an order regularising the legal representation of a party; that's something which is seems to me doesn't advance the proceeding. Weismann v Weismann [2009] QDC 153.

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CaseChat Overview and Summary

In the case of Tamera v Roombridge Pty Ltd t/a Laguna Noosa, the plaintiff Carole Aurora Tamera sought leave to withdraw her solicitors, McColm Matsinger Lawyers, and to proceed in person in her action against the defendants, Roombridge Pty Ltd and Suzanne Fulkoski. The matter was before the District Court of Queensland. The dispute arose from an incident that allegedly resulted in personal injuries to the plaintiff, and the case involved claims under the Personal Injuries Proceedings Act 2002.

The legal issues before the court included whether the statutory stay under the Personal Injuries Proceedings Act 2002 prevented the court from granting leave for the plaintiff to withdraw her solicitors, and whether the plaintiff was entitled to proceed in person. Additionally, the court had to determine if the plaintiff should be liable for the costs of the withdrawing solicitors. The court was also required to consider the appropriate address for service for the plaintiff after she filed a notice of acting in person.

The court held that the statutory stay did not preclude it from making an order to allow the plaintiff to withdraw her solicitors and proceed in person. The court noted the oddity of the proceeding being an originating application rather than a formal suit, despite the plaintiff being referred to as such. The court also found that the plaintiff's notice of acting in person rendered the application for costs by the solicitors unnecessary, as they had not appeared in the proceedings. The court concluded that the plaintiff was entitled to proceed in person and did not order her to pay the costs of the withdrawing solicitors.

The court's final orders included permitting the plaintiff to withdraw her solicitors, McColm Matsinger Lawyers, and allowing her to proceed in person. The court specified the address for service of the plaintiff as 54 Kestrel Crescent, Peregian Beach. The plaintiff was not ordered to pay the costs of the withdrawing solicitors.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established