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  • Unreported Judgment

Folwell v Mayer (No 2)

 

[2020] QSC 211

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Folwell v Mayer (No 2) [2020] QSC 211

PARTIES:

DONNA LEE FOLWELL

(Applicant)

v

JENNIFER MAYER TRADING AS DISCOVERY CHIROPRACTIC

(Respondent)

FILE NO/S:

BS No 13682 of 2019

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

14 July 2020

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Bowskill J

ORDERS:

The applicant’s solicitor, CMC Lawyers pay the respondent’s costs of the originating application filed 9 December 2019, to be assessed on the standard basis, if not agreed.

CATCHWORDS:

LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – determination of costs of application under  s 59 of the Personal Injuries Proceedings Act 2002 (Qld) for leave to commence proceedings

COUNSEL:

R D Green for the applicant

P Hackett for the respondent

SOLICITORS:

CMC Lawyers for the applicant

Meridian Lawyers for the respondent

  1. [1]
    On 8 June 2020 I made an order under s 59 of the Personal Injuries Proceedings Act 2002, granting the applicant leave to commence proceedings, even though the limitation period has expired:  Folwell v Mayer [2020] QSC 162.
  2. [2]
    These further reasons deal with the costs of that application.
  3. [3]
    The applicant’s solicitors have confirmed that they will not seek to recover the costs associated with the application from the applicant, whether at settlement or otherwise.[1] 
  4. [4]
    In so far as the respondent’s costs of the application are concerned, for the following reasons I am satisfied it is appropriate to make an order that the applicant’s solicitors, CMC Lawyers, pay the respondent’s costs of the application, to be assessed on the standard basis, if not agreed.
  5. [5]
    Having considered the submissions filed on behalf of both parties, I remain of the view that in the circumstances of this case, where the applicant was seeking an indulgence from the court, and the respondent’s opposition cannot be said to have been unreasonable, it is appropriate that the respondent recover her costs of the application.  
  6. [6]
    The submission put against this, on behalf of the applicant, seems to be that the applicant was successful in seeking the relief she sought; that it is rare for a successful party to be ordered to pay the unsuccessful party’s costs; and that the applicant’s delay did not cause the respondent additional costs.  As to the latter point, if that is the submission (which is not entirely clear) it is without foundation – the only reason the application was required was because of the applicant’s (solicitors’) delay.  But for that delay and inaction, no application would have been required, and no costs would have been incurred.  But as to the other points, it is well supported that, although it is always a matter for the exercise of the court’s discretion, a party seeking an indulgence – particularly of the kind sought in this case – can expect to be required to pay the other party’s costs, unless the other party’s opposition was wholly unreasonable.[2]  That was not the case here.
  7. [7]
    In the costs submissions filed on behalf of the applicant, it is acknowledged that if the court finds that it is appropriate that the respondent recover her costs of the application, then it is appropriate that such order be directed towards the applicant’s solicitors, rather than the applicant herself.    It is therefore unnecessary to say any more about this.
  8. [8]
    The remaining matters dealt with in the submissions on the applicant’s behalf concern opposition to the costs being awarded on the indemnity basis, and a submission that payment of the costs should be “deferred to the resolution of the case”.  As to the former, no application for costs to be assessed on the indemnity basis was made.   As to the latter, although again it is not entirely clear, it seems the submission may be that the costs order should be made contingent on the outcome of the case (presumably, so that it is not payable unless the respondent successfully defends the claim for damages for personal injuries).  I reject that submission, to the extent it was made.  Apart from anything else, there is, as yet, no proceeding in relation to the substance of the applicant’s proposed claim.  The relevant proceeding in this court is the proceeding commenced by the filing of the originating application on 9 December 2019, seeking an order under s 59 of the Personal Injuries Proceedings Act.  It is the respondent’s costs of that proceeding which are the subject of the order.  Otherwise, I can see no reason to defer enforcement of that costs order. 
  9. [9]
    I therefore order that the applicant’s solicitor, CMC Lawyers, pay the respondent’s costs of the originating application filed 9 December 2019, to be assessed on the standard basis, if not agreed.

Footnotes

[1]  Affidavit of Ms Wills filed 17 June 2020 at [4].

[2] Holt v Wynter (2000) 49 NSWLR 128 at [121]; Stanley v Layne Christensen Company [2006] WASCA 56 at [52]; see also the discussion in The President’s Club Limited v Palmer Coolum Resort Pty Ltd (No 2) [2020] QSC 11 at [42]-[51] per Bond J.

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Editorial Notes

  • Published Case Name:

    Folwell v Mayer (No 2)

  • Shortened Case Name:

    Folwell v Mayer (No 2)

  • MNC:

    [2020] QSC 211

  • Court:

    QSC

  • Judge(s):

    Bowskill J

  • Date:

    14 Jul 2020

Litigation History

No Litigation History

Appeal Status

No Status