Wallace v RSL Care Limited (No 2)

DISTRICT COURT OF QUEENSLAND

CITATION:

Wallace v RSL Care Limited (No 2) [2017] QDC 179

PARTIES:

JILLIAN WALLACE
(plaintiff)

v

RSL CARE LIMITED
(defendant)

FILE NO/S:

1392/2013

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

Brisbane District Court

DELIVERED ON:

23 June 2017

DELIVERED AT:

Brisbane

HEARING DATE:

21 June 2017

JUDGE:

Reid DCJ

ORDER:

The plaintiff pay the defendant’s costs thrown away by reason of the adjournment of the trial on 7 November 2016, to be assessed on a standard basis.1.          

The defendant otherwise pay the plaintiff’s costs of and incidental to the action to be assessed on a standard basis incurred.2.          

The plaintiff’s application for certification for two counsel is dismissed.3.          

CATCHWORDS:

COSTS – ASSESSMENT OF COSTS – whether to certify costs of two counsel – costs of adjournment – where statement of loss and damage was not updated – where rule 549 of the UCPR was not complied with

COUNSEL:

R Morton and J Sorbello for the plaintiff
S Gray for the defendant

SOLICITORS:

Morton & Morton for the plaintiff
BT Lawyers for the defendant

1. On 21 June 2017, I gave judgment for the plaintiff in her claim for damages for personal injury arising out of her employment with the defendant.  As a result of my judgment the parties agreed that I should order that the defendant pay the plaintiff’s costs of the action from 25 March 2013 to be agreed, or failing agreement to be assessed, on the standard basis.

1. Two issues remain for my determination. 

1. As is apparent form my trial judgment, the plaintiff was represented by two junior counsel.  The plaintiff asks that I certify for the costs of two counsel.  That is opposed. 

1. The matter originally came on for trial before me on 7 November 2016.  The matter was on the day adjourned to 19 December when the trial proceeded.  The reason for that adjournment was that the defendant required the plaintiff to be re-examined by Dr Morgan.  It was not disputed, and could not sensibly be disputed, that such further examination was necessary.  The question of which party, if either, should pay the costs of that adjournment, which were reserved by me on 7 November, involves consideration of the circumstances in which the defendant was notified that the plaintiff had surgery, performed by Dr Peereboom, on her injured foot in August 2015. 

Two counsel

1. The plaintiff submits that allowing for two counsel is appropriate because: 

“(a) The defendant required the plaintiff to prove all matters, including maintaining a denial that the incident even occurred…;

(b) There was (sic) complex issues of causation in respect of the occurrence of the DVT and the pulmonary embolism;

(c) Voluminous documentary evidence was utilised at the trial, including a three volume tender bundle, together with a 37 page chronology prepared for the tender bundles.” 

1. Counsel for the defendant opposes that course. He submits that standard costs involve allowance “for all costs necessary or proper for the attainment of justice or for enforcing or defending the…