Waterless Systems (Aust) Pty Ltd v Mulholland

[2001] QSC 41

SUPREME COURT OF QUEENSLAND

[2001] QSC 041

File No S1171 of 2000

BETWEEN:

WATERLESS SYSTEMS (AUS) PTY LTD

Plaintiff

AND:

JOHN NELSON MULHOLLAND and SUZANNE MARIE MULHOLLAND

First Defendants

AND:

SOUTH PACIFIC TIMBER PTY LTD

Second Defendant

MOYNIHAN J – REASONS FOR JUDGMENT

DELIVERED ON:

9 March 2001

HEARING DATE:

8 February 2001

ORDER:

That the solicitors for the Mulhollands pay the costs the subject of the order of 8 February 2001 from 5 September 2000.

CATCHWORDS:

PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – CONDUCT OF PARTIES – Other Conduct – Whether solicitors liable for indemnity costs where application for trial made prematurely.

COUNSEL:

Mr T C Somers for the Plaintiff
Mr P Hackett for the Defendants

SOLICITORS:

McKays Solicitors for the Plaintiff

Elliott and Harvey Solicitors for the Defendants

1. For reasons which will emerge it is convenient to refer to the parties by an abbreviation of their name rather than by their place in the action.

1. When this action came on for trial on 8 February 2001 Waterless Systems (Aus) was given leave by consent to discontinue its claim with no order as to costs.  After submissions, the Mulhollands’ application to amend the defence and counterclaim was dismissed, the defence and counterclaim struck out, the trial date vacated and the trial adjourned.  Orders were made joining additional parties and directions were given as to the progress of the action.  The counterclaiming defendants now have carriage of the action as plaintiffs on the counterclaim.

1. An order was made that Waterless Systems (Aus) costs of:

(i)         the application to amend the defence and counterclaim;

(ii)       the application to strike out the defence and counterclaim;

(iii)      thrown away by striking out the defence and counterclaim; and

(iv)       thrown away by the vacating of the trial dates and the adjournment of the trial

be assessed up to and including 4 September 2000 on a standard basis and there after on an indemnity basis. The Mulhollands were ordered to pay costs up to and including 4 September and the issue of the payment of costs after that date was reserved. The solicitor for the Mulhollands who is presently responsible for the conduct of the action was directed to swear and deliver to my Associate an affidavit addressing, in terms of the applicable provisions of the Uniform Civil Procedure Rules and Practice Direction 4 of 2000:

(i)         the terms of the application for trial date;

(ii)       a letter of 6 February 2001 (it canvassed a range of matters about the trial);

(iii)      vacating of the trial dates.

1. That affidavit has now been filed.  I have received written submissions and no indication that the parties desire to make further oral submissions.  I therefore propose disposing of the reserved costs.

1. The letter of 6 February 2001 and the surrounding circumstances demonstrate that it ought to have been appreciated when the application for trial date was signed on behalf of the Mulhollands on 23 August 2000 that there were unresolved issues about the identity of the parties.  Clarity on these issues is necessary to effectively constitute the action on the counterclaim.  For that and other reasons it could not reasonably be said that the matter was ready for trial.  The solicitors for the other parties signed the application on 4 September 2000.  Despite nothing occurring to alter the position, the Mulhollands’ solicitors were party to the lodging of the request for trial on 9 November and the subsequent allocation of a trial date.  Nothing was effectively done to raise the issues with the other side until the letter of 6 February 2001 referred to earlier and the Civil List Manager was not advised of the position until the day of the trial.  The orders and directions made on 8 February are indicative of the state of unreadiness of the action and were founded on considerations which ought to have been apparent prior to the filing of and signing of the application for trial date and the action being set down for trial.

1. Whilst one may be sympathetic to solicitors who agree to act for impecunious clients who might otherwise be unrepresented, such solicitors are nevertheless obliged to comply with the Uniform Civil Procedure Rules and applicable Practice Directions or provide justification for not having done so.  Those obligations cannot be overridden simply by a client’s desire to have the matters disposed of expeditiously at a minimum cost.  There has otherwise been no justification here for the events to which the reserved costs apply.  The parties themselves did not cause, or necessarily contribute to the situation.  I therefore order that the solicitors for the Mulhollands pay the costs the subject of the order of 8 February 2001 from 5 September 2000.