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  • Unreported Judgment

Kennedy v Cassady

 

[2006] QSC 97

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NO/S:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

DELIVERED ON:

17 March 2006

DELIVERED AT:

Cairns

HEARING DATE:

17 March 2006

JUDGE:

Jones J

ORDER:

1.I direct that the solicitors for the defendant list, by 4 p.m. this afternoon, the documents which they require which have not already been provided.

2.I direct the date to provide those documents by 4 p.m. on Monday, the 20th March 2006.

3.I order a compulsory conference will be held in Townsville on the 31st March 2006.

4.I order that the defendant pay the plaintiff’s costs of and incidental to this application, to be assessed on the standard basis.

CATCHWORDS:

PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – OTHER MATTERS BEFORE TRIAL – where proceedings brought pursuant to Motor Accident Insurance Act 1994 – where act required compulsory conference – where parties failed to agree on a date – whether date for compulsory conference should be ordered by the court

Section 51A Motor Accident Insurance Act 1994

COUNSEL:

Mr A Philp SC for the applicant

Mr Baulch SC for the respondent

SOLICITORS:

Roati & Firth Lawyers for the applicant

Cleary & Lee Solicitors for the respondent

[1] By this application, the plaintiff seeks an order for the fixing of the time and place for a compulsory conference to be held pursuant to s 51A of the Motor Accident Insurance Act 1994 (“the Act”).

[2] Section 51A relevantly provides:-

“(1)Before the claimant brings an action in a court for damages for personal injury arising out of a motor vehicle accident, there must be a conference of the parties (the “compulsory conference”).

(2)Either party may call the compulsory conference –

(a) at a time and place agreed between both parties; or

(b) if the relevant date has passed – at a reasonable time and place nominated by the party calling the conference.

(3)For subsection (2)(b), the relevant date is –

(a) the date falling 6 months after the claimant gave notice to the insurer of the claim; or

(b)if the insurer required additional information, the later of the following –

(i) The date falling 6 months after the claimant gave notice to the insurer of the claim;

(ii) The date falling 1 month after the claimant gave the insurer the completed additional information form.”

[3] The need for the application arises because the solicitors for the respective parties have been unable to reach agreement as to an appropriate time for the compulsory conference.  It is evident from the correspondence passing between the respective solicitors that there has been some ill-feeling between them about the conduct of compulsory conferences.  What has followed, on my assessment, has been an unwillingness to co-operate in a manner that is expected of legal practitioners.  Because both firms of solicitors are commonly involved in personal injury litigation as a matter of common sense the differences need to be redressed.  I have already made orders for the disposition of this application and I now set out my reasons.

Background facts

[4] The relevant factual background commences on 28 September 2005 when the plaintiff’s solicitors forwarded to the second respondent (the respondent) a statement of damages and nominated 9 November 2005 as the date for a compulsory conference.  The respondent replied on 3 October 2005 requesting further information and copy documents and then nominating that the plaintiff be interviewed by an occupational therapist.  For these matters to be attended to it was necessary to forego the proposed conference date.

[5] On 20 December 2005 the plaintiff’s solicitors suggested a new date and place as either Townsville on 23 January or Brisbane on 25 January 2006.  This proposal evoked a response from the respondent’s solicitors on 19 January 2006 advising that the January dates did not allow sufficient time for their review of the respondent’s file.  A follow-up letter on 25 January 2006 requested the plaintiff’s solicitors to “arrange for any additional (relevant) documents to be provided”.[1]

[6] Following the next exchange of correspondence a compulsory conference was tentatively set for 8 March 2006 in Townsville.  The date was tentative because the respondent’s solicitors would only be completing their advice to the respondent “early next week” i.e. the week commencing 13 February 2006. 

[7] The plaintiff’s solicitors, objecting to this uncertainty, threatened to make this application unless there was consent in the form of an order to the holding of a conference on 8 March 2006. 

[8] On 20 February 2006 the respondent’s solicitors replied by seeking specified documents and information.[2] Some items were simply documents associated with out-of-pocket expenses but significantly there was sought copies of the claimant’s taxation return, PAYG certificates and notice of assessment for the year ended 30 June 2005 and copies of wages documentation for the period 1 July 2005 to 31 December 2005.  The letter suggested a new date for conference on 5 April 2006.

[9] On 22 February 2006 the plaintiff’s solicitors complained of the late request for this information but enclosed the documents requested and clarified other information.  They then nominated 10 dates for the compulsory conference between 15 March – 31 March 2006.  On 24 February 2006 the plaintiff’s solicitors requested a firm commitment to one of the 10 dates.

[10] The respondent’s solicitor’s substantive response to this was in a letter dated 6 March 2006 and included the following –

“We advise that we have received our client’s instructions to proceed with a Compulsory Conference in this matter when the writer is next in Townsville for conferences.  We advise that day is 19 April 2006.  The matter has been listed for a conference that day.”[3]

[11] That unilateral fixing of the conference date was to conform with the respondent’s solicitor’s programme for visiting Townsville on a certain day each month throughout the year to attend such conferences.  These dates were referred to by the respondent’s solicitor, Mr Nunan, as “bulk conference days”.[4]

[12] Apparently this is seen as a cost effective way of transacting the respondent’s business.  It is a practice said to have been adopted by other licensed insurers.[5]  It was submitted by Mr Baulch of Senior Counsel for the respondent that in the main it does not cause inconvenience for the litigants.  That may or may not be so, but in the circumstances of this case there were considerations of convenience to other practitioners and timeliness for the litigants.  These considerations appear to have been completely ignored by the respondent’s solicitors who have merely argued for the practicality of the arrangement from their point of view.[6]

[13] Obviously a litigant has an unfettered right to choose which lawyer is to represent his/her or its interests.  The choice of a firm of solicitors in Toowoomba to represent the respondent’s interests in litigation in Townsville is puzzling but is not criticised here.  But what has to be guarded against is that the obvious difficulties of contact between legal representatives arising from such separation should not be borne by those affected by the respondent having made such a choice.

[14] There is also some disputation between the respective solicitors as to whether certain of the plaintiff’s income tax documents had been supplied.  These relate to taxation periods prior to the ones in respect of which information was sought on 20 February 2006.  The respondent relies on this alleged failure to provide information to claim the one month’s grace required by s 51A(3)(b)(ii).  The plaintiff’s solicitors assert that the documents have been provided but are prepared to furnish further copies.

[15] I do not see that it is necessary for me to resolve any dispute about whether documents were supplied.  The issue is of such a nature that practitioners acting in good faith ought to have resolved it efficiently and inexpensively with a phone call.  I have chosen to deal with the matter by giving directions about the identification of documents and supply of them as appears from the orders which I have already pronounced.  I will repeat the orders that I have already made in the following terms.

Orders

[16]  1.I direct that the solicitors for the defendant list, by 4 p.m. this afternoon, the documents which they require which have not already been provided.

2.I direct the date to provide those documents by 4 p.m. on Monday, the 20th March 2006.

3.I order a compulsory conference will be held in Townsville on the 31st March 2006.

4.I order that the defendant pay the plaintiff’s costs of and incidental to this application, to be assessed on the standard basis.

Footnotes

[1] Ex “JR9” the affidavit of John Roati sworn 13 March 2006.

[2] Ibid ex “JR13”.

[3] Ibid ex “R17”; there was an earlier pro forma response dated 28 February 2006 – ex “A” to the affidavit of John Roati sworn 16 March 2006.

[4] Affidavit Patrick Nunan sworn 15 March 2006.

[5] Ibid at para 7.

[6] Ibid at paras 8 and 9.

Close

Editorial Notes

  • Published Case Name:

    Kennedy v Cassady & Anor

  • Shortened Case Name:

    Kennedy v Cassady

  • MNC:

    [2006] QSC 97

  • Court:

    QSC

  • Judge(s):

    Jones J

  • Date:

    17 Mar 2006

Litigation History

No Litigation History

Appeal Status

No Status