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  • Unreported Judgment

Tinoai v Queensland Police-Citizens' Youth Association

 

[2004] QSC 410

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

de JERSEY CJ

No 4480 of 2000

NIKOTEMO TINOAI (AN INFANT BY HIS NEXT FRIEND NIKOLAO TINOAI)

Plaintiff

and

 

QUEENSLAND POLICE-CITIZENS' YOUTH ASSOCIATION

First Defendant

and

 

SOUTH QUEENSLAND CONFERENCE OF THE SEVENTH DAY ADVENTIST CHURCH

Second Plaintiff

BRISBANE

DATE 20/09/2004

JUDGMENT

HIS HONOUR: This is an application for sanction of a settlement which emerged from a successful mediation. The need for the sanction attaches to the circumstance that the plaintiff is an infant.

The agreement was that the sum of $615,000 be paid, the terms of settlement going on to provide that, “The second defendant shall also pay the plaintiff's costs agreed in the sum of $35,000.” A later term of the settlement says that, “The agreed costs include the plaintiff's costs of and incidental to the sanction application.”

Mr Miles, who appears for the second defendant, which is in the notion of a self-insurer, has asked me to rely on affidavits by a Mr Morgan and a Mr Hopkins, to the, effect that the second defendant Church, of which the plaintiff and his family were members, had a particular interest in ensuring that the amount to be paid to the severely injured plaintiff pursuant to this settlement would be optimal. Those affidavits go to suggest a view, on the part of those deponents anyway, that the sum of $35,000, referred to in the terms of settlement in relation to costs, would be the upper limit of anything the plaintiff would have to disburse in that regard.

The difficulty about that argument is that the terms of settlement read, in a perfectly orthodox way, as a record of the settlement between the relevant parties; that is, in this case, the plaintiff and the second defendant. Accordingly, references to costs in those terms of settlement would usually be construed as referring to the position as to costs as between those parties and not the position as to costs between the plaintiff and the plaintiff's own solicitors. That latter position falls to be dealt with by reference to the terms of the retainer. The affidavit from Mr Scott refers in paragraph 4 to his firm's acting on a speculative basis.

I assume that means in this case that in the event of the plaintiff's success to any substantial extent, as has occurred here, the plaintiff's solicitors would be entitled to their full costs in the usual way. In the usual course in situations like this, the difference between party and party costs and solicitor and client costs is assessed with the balance being paid separately from the settlement fund.

Mr Lee, who appears for the plaintiff, informs me that, speaking very roughly and without binding him, he would expect an additional sum of the order of $25,000 to be payable.

While appreciating the concern of the second defendant Church reflected in the affidavits of Messrs Hopkins and Morgan, I have as a matter of law to construe the terms of settlement, I believe, as defining the position as between the parties, and not bearing upon the plaintiff's solicitor's entitlement as to costs as against the plaintiff himself.

However, before concluding the issue, as contemplated by rule 98 of the Uniform Civil Procedure Rules, I need the assurance of an affidavit by the litigation guardian. As I am informed, if this is pursued, that will be to the effect that the litigation guardian and the plaintiff approve of the payment of the margin from the settlement fund to the plaintiff.

I am proceeding on that basis because it is, of course, the plaintiff himself who applies for that very order, as to which see paragraph 6 of the notice of motion. Of course, I must proceed on the basis that that order has been sought on proper instructions. That said, however, I believe there should also in this case be a further affidavit by the solicitor for the plaintiff deposing to the basis upon which he contends in terms of his retainer that he is entitled to recover that margin from the settlement funds.

I will sanction the settlement, which is in the interests of the plaintiff and is reasonable in other respects. Before making the order, however, which would incorporate provision to the effect of paragraph 6 of the notice of motion, I would require that further assurance.

At this stage I will therefore adjourn the application to a date to be fixed and reserve costs. In the event that, Mr Miles, you consider that the further affidavit material filed should be read as satisfying the concerns I have expressed today, then it will be sufficient if you initial a draft order for the sanction in its full sense, which can be delivered to my Chambers without the need for any further appearance here.

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Editorial Notes

  • Published Case Name:

    Nikotemo Tinoai (An Infant by his Next Friend Nikolao Tinoai) v Queensland Police-Citizens' Youth Association

  • Shortened Case Name:

    Tinoai v Queensland Police-Citizens' Youth Association

  • MNC:

    [2004] QSC 410

  • Court:

    QSC

  • Judge(s):

    de Jersey CJ

  • Date:

    20 Sep 2004

Litigation History

No Litigation History

Appeal Status

No Status