Wolski v ALH Group Pty Ltd - [2009] QDC 140

DISTRICT COURT OF QUEENSLAND

CITATION:

Wolski v ALH Group Pty Ltd [2009] QDC 140

PARTIES:

DAMIAN CHRISTOPHER WOLSKI

(Applicant)

AND

ALH GROUP PTY LTD

(Respondent)

FILE NO/S:

D934/09

DIVISION:

Civil

PROCEEDING:

Application for costs after judgment

ORIGINATING COURT

District Court, Brisbane

DELIVERED ON:

29 May 2009

DELIVERED AT:

Brisbane

HEARING DATE:

Final written submissions on costs delivered on 22 April 2009

JUDGE:

Irwin DCJ

ORDER:

The respondent pay the applicant’s costs of and incidental to the application to be assessed on the standard basis.

CATCHWORDS:

PROCEDURE – Costs – liability of the respondent for costs for failure, without proper reason to comply fully with s 27 of the Personal Injuries Proceedings Act 2002 – request to respondent to give documents and information to applicant – no response to request prior to filing originating application – prior to hearing applicant conceding that not entitled to requests relating to documents – prior to hearing applicant not maintaining a request for information – prior to hearing respondent agreeing to some requests for information – order that the respondent provide information on all contested requests – extent of applicant’s entitlement to costs in these circumstances

PROCEDURE – Costs – general rule – costs follow the event

Personal Injuries Proceedings Act 2002, s 27

Uniform Civil Procedure Rules 1999, r 681

BHP Coal Pty Ltd & Ors v O & K Orestein & Koppel AG and Ors (No. 2) [2009] QSC 64, cited

Haug v Jupiters Limited [2008] 1 Qd R 276, cited

Oshlack v Richmond (1998) 193 CLR 72, cited

RACQ-GIO Insurance Limited v Ogilvie [2002] 1 Qd R 536, cited

COUNSEL:

SOLICITORS:

Mr P. Gibson (Shine Lawyers) for the applicant

Ms V.L. Barber (McInnes Wilson Lawyers) for the respondent

When I gave judgment in this case on 15 April 2009 I made orders that the applicant and the respondent file written submissions as to the payment of costs. The parties have since delivered their submissions.

The originating application filed on 3 April 2009 was for orders:

1. That the respondent provide the applicant with a response to the request for information delivered by the applicant pursuant to section 27 of the Personal Injuries Proceedings Act 2002 on 17 November 2008, within seven (7) days.

2. that such response be by way of Statutory Declaration.

3. the respondent pay the applicant’s costs of the application pursuant to section 27(4) of the Personal Injuries Proceedings Act 2002.

4. Such further or other Order as this Honourable Court may deem appropriate.

In this judgment I refer to the above Act as the “PIPA”.

The requests for information were numbered from 1 to 14. Because two of these involved requests for both information and documents,[1] the respondent’s submission proceeds on the basis that there were 16 requests.
[1]These were requests Nos 13 and 14.

Before the application was heard, the respondent’s solicitors notified the applicant’s solicitors that their client undertook to comply with five of the requests within 14 days.[2] One of these requests related…

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.

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Details

Case: [2009] QDC 140
Decision Date: 29 May 2009

CaseChat Overview and Summary

Wolski v ALH Group Pty Ltd involved a dispute over costs incurred due to the respondent's failure to comply with a statutory request for documents and information. The case was heard in the Supreme Court of Victoria. The applicant, Wolski, sought costs from the respondent, ALH Group Pty Ltd, for its failure to comply fully with section 27 of the Personal Injuries Proceedings Act 2002. Wolski had requested certain documents and information from ALH Group before filing an originating application. The respondent did not respond to these requests prior to the hearing. Before the hearing, Wolski conceded that it was not entitled to certain requests for documents. Additionally, Wolski did not maintain a request for information before the hearing, but ALH Group had agreed to provide some information. The court had to determine the extent of Wolski's entitlement to costs under these circumstances.

The legal issues before the court were whether the applicant was entitled to costs for the respondent's failure to comply with the statutory request, and if so, to what extent. The court considered the statutory provisions and the general rule that costs follow the event. The court noted that while Wolski had conceded it was not entitled to some of the requested documents, it still had a right to seek costs for the failure to provide information on other contested requests. The court also had to weigh the respondent's agreement to provide some information against its initial failure to respond to the requests.

The court found that the respondent was liable for some of the costs incurred by the applicant due to its failure to comply with the statutory request. The court held that the general principle that costs follow the event applied, and the respondent should bear the costs of the application. The court assessed the costs on the standard basis and ordered the respondent to pay the applicant's costs of and incidental to the application. The court considered that the respondent's partial compliance with some of the requests did not absolve it of its liability for costs due to its initial failure to respond.

The court's orders were that the respondent, ALH Group Pty Ltd, would pay the applicant's costs of and incidental to the application to be assessed on the standard basis. This decision reinforced the importance of complying with statutory requests and the potential financial consequences for failing to do so. The court's reasoning emphasised the principle that costs follow the event and the applicant's entitlement to seek costs for the respondent's failure to comply with the statutory request.

Orders

Orders of the court

The respondent pay the applicant’s costs of and incidental to the application to be assessed on the standard basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Wolski v ALH Group Pty Ltd [2009] QDC 140
PARTIES:	DAMIAN CHRISTOPHER WOLSKI (Applicant) AND ALH GROUP PTY LTD (Respondent)
FILE NO/S:	D934/09
DIVISION:	Civil
PROCEEDING:	Application for costs after judgment
ORIGINATING COURT	District Court, Brisbane
DELIVERED ON:	29 May 2009
DELIVERED AT:	Brisbane
HEARING DATE:	Final written submissions on costs delivered on 22 April 2009
JUDGE:	Irwin DCJ
ORDER:	The respondent pay the applicant’s costs of and incidental to the application to be assessed on the standard basis.
CATCHWORDS:	PROCEDURE – Costs – liability of the respondent for costs for failure, without proper reason to comply fully with s 27 of the Personal Injuries Proceedings Act 2002 – request to respondent to give documents and information to applicant – no response to request prior to filing originating application – prior to hearing applicant conceding that not entitled to requests relating to documents – prior to hearing applicant not maintaining a request for information – prior to hearing respondent agreeing to some requests for information – order that the respondent provide information on all contested requests – extent of applicant’s entitlement to costs in these circumstances PROCEDURE – Costs – general rule – costs follow the event Personal Injuries Proceedings Act 2002, s 27 Uniform Civil Procedure Rules 1999, r 681 BHP Coal Pty Ltd & Ors v O & K Orestein & Koppel AG and Ors (No. 2) [2009] QSC 64, cited Haug v Jupiters Limited [2008] 1 Qd R 276, cited Oshlack v Richmond (1998) 193 CLR 72, cited RACQ-GIO Insurance Limited v Ogilvie [2002] 1 Qd R 536, cited
COUNSEL:
SOLICITORS:	Mr P. Gibson (Shine Lawyers) for the applicant Ms V.L. Barber (McInnes Wilson Lawyers) for the respondent