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Gitsham v Suncorp Metway Insurance Ltd[2002] QCA 416

Gitsham v Suncorp Metway Insurance Ltd[2002] QCA 416

 

SUPREME COURT OF QUEENSLAND

  

PARTIES:

FILE NO/S:

Appeal No 3548 of 2002

Appeal No 3549 of 2002

DC No 1001 of 2002

DC No 909 of 2002

DC No 908 of 2002

Court of Appeal

PROCEEDING:

Application for leave s 118 DCA (Civil) – Further Order

ORIGINATING COURT:

DELIVERED ON:

Judgment delivered 23 August 2002
Further Order delivered 11 October 2002

DELIVERED AT:

Brisbane

HEARING DATE:

26 July 2002

JUDGES:

Davies and Williams JJA and White J
Separate reasons for further order of each member of the Court, each concurring as to the orders made

FURTHER ORDER:

In each application and appeal:

  1. the respondent pay the appellant’s costs of and incidental to the applications for leave and the appeal to be assessed on the standard basis;
  2. the solicitors for the respondent pay the appellant’s costs of the hearing in the District Court to be assessed on the standard basis.

CATCHWORDS:

PROCEDURE – COSTS – DEPARTING FROM GENERAL RULE – POWERS OF COURT – power to order solicitors to pay costs of proceedings

PROCEDURE – COSTS – DEPARTING FROM GENERAL RULE – OTHER CASES  – UNCERTAINTY OF LAW – whether solicitor can reasonably be expected to comply with recent amendments to legislation – where legislation is clear and unambiguous – whether solicitors ought to pay costs of proceedings

PROCEDURE – COSTS – DEPARTING FROM GENERAL RULE – OTHER CASES – OTHER CASES – where solicitors fail to comply with legislation proscribing litigation procedure – whether solicitors ought to pay costs of application and/or appeal

INSURANCE – THIRD-PARTY LIABILITY INSURANCE – MOTOR VEHICLES – COMPULSORY INSURANCE LEGISLATION – GENERALLY – QUEENSLAND – where recent amendments to Motor Accidents Insurance Act 1994 (Qld) – where solicitors fail to comply with amendments resulting in further costs to both parties – whether solicitors ought to pay costs of application and/or appeal

PROFESSIONS AND TRADES – LAWYERS – DUTIES AND LIABILITIES – TO OTHERS PERSONS – LIABILITY FOR COSTS – where expense and delay caused by solicitors’ failure to comply with legislation proscribing litigation procedure – whether solicitors ought to pay costs of application and/or appeal

Motor Accidents Insurance Act 1994 (Qld), Part 4 Division 4

Caboolture Park Shopping Centre Pty Ltd (in liq) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224, applied

Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225, considered

Deputy Commissioner of Taxation v Levick (1999) 168 ALR 383, considered

De Sousa v Minister for Immigration (1993) 41 FCR 544, considered

Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1998) 81 ALR 391, considered

Knight v F P Special Assets Ltd (1992) 174 CLR 178, applied

Money Tree Management Service Pty Ltd v Deputy Commissioner of Taxation (No. 3) [2000] SASC 286, considered

COUNSEL:

W Sofronoff QC, with K F Holyoak, for the applicant/appellant

S J Given for the respondents

SOLICITORS:

Suncorp Metway Insurance Limited for the applicant/appellant

Morton & Morton (Maryborough) for the respondents

[1]  DAVIES JA:  I agree with the reasons for judgment of White J and with the orders she proposes.

[2]  WILLIAMS JA:  I agree with the orders proposed by White J.

[3]  WHITE J:  The Court delivered judgment in these appeals on 23 August 2002 and invited the solicitors for the respondents to lodge with the registrar within 14 days submissions in writing showing cause why they ought not be ordered to pay the costs of the applications and the appeals.  The solicitors have done so.  The appellant has responded with an application to have the costs to which it is clearly entitled as the successful appellant assessed on the indemnity basis and the solicitors have responded to that application. 

[4] There is no dispute that the court has jurisdiction to make an order that a person not a party to the proceedings pay costs, Knight v F P Special Assets Ltd (1992) 174 CLR 178.  That power includes the power to make an order for costs against the solicitor representing a party, Caboolture Park Shopping Centre Pty Ltd (in liq) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224.

[5] The solicitors submit that there is no conduct warranting an order against them personally because of the recency of the amendments to the Motor Accident Insurance Act 1994 with which the appeals were concerned and the lack of guidance as to how those amendments should be implemented.  They further submitted that the conduct of the solicitors was not of the kind which attracts such liability.

[6] The relevant amendments to the Act were assented to on 8 June 2000 and commenced variously on 1 July and 1 October 2000.  There is nothing novel, ambiguous or difficult in Part 4 of the Act where these amendments are to be found.  Timeframes established in that Part reflect one of the objects of the Act, namely, to bring about the speedy resolution of claims.  However, there is nothing to suggest that this may be achieved at the sacrifice of adequate preparation.  What the Act does is to state that early resolution will best be advanced by co-operation between a claimant and the insurer.  Part 4 Division 4 contains the provisions with which the appeal was most concerned and spells out with clarity what that co-operation entails.

[7] Certain of the correspondence emanating from the respondents’ solicitors to which detailed reference was made in the appeal judgment does not reflect an acknowledgement of this obligation.  No explanation has been given as to why the information sought would not be provided to the insurer nor even an acknowledgment in the case of Mrs Edwards that she was content to proceed to a settlement conference although, in the opinion of her orthopaedic specialist, her injury had not stabilised; and in the case of Ms Jensen that she would forego further consideration of her ongoing unsettled symptoms to achieve an early settlement.

[8] Cases in which the discretion to order costs against a party’s solicitors have been discussed emphasise the need for caution, De Sousa v Minister for Immigration (1993) 41 FCR 544; Deputy Commissioner of Taxation v Levick (1999) 168 ALR 383 per Hill J confirmed on appeal [2000] 44 ATR 315; and Money Tree Management Service Pty Ltd v Deputy Commissioner of Taxation (No. 3) [2000] SASC 286.  The jurisdiction will not, without more, be exercised in favour of an order against a party’s solicitor merely because the case advanced had no substantial chance of success, Deputy Commissioner of Taxation v Levick per Hill J at [11].  In a case such as the present the court is particularly concerned to ensure that there is no abuse of process understood in a broad sense.  An important object of the Act is to avoid the expense and delay inherent in litigating claims in the courts and a detailed regime is established which, if followed in good faith, will tend to that result.

[9] The solicitors submit that they have done nothing but fairly prepare each claim and acted reasonably in facilitating the further progress of the claims by applying to have the obligation to hold the compulsory conference dispensed with when there were “late” requests for information.  The analysis of the progress of the claims seen through the correspondence considered in the appeal cannot support this assertion.  The claims do not appear to have been thoroughly or even adequately prepared in some aspects and the obligation of co-operation appears to have been given only a passing nod by the solicitors for the respondents.  There is no suggestion that the respondents instructed that they wanted a quick settlement without proper preparation.  The inference which the solicitors have been unable to resist is that the solicitors wanted turnover without the trouble of providing the information sought by the insurer pursuant to s 45 of the Act.

[10]  Accordingly the solicitors ought to pay the costs of the applications below in the District Court.  There was nothing in the conduct of the appeal which would cause an order for the costs of that appeal to which the appellant is entitled to be made against the solicitors.

[11]  The appellant seeks its costs to be assessed on the indemnity basis.  There is nothing special about the circumstances of these matters which would justify a departure from the ordinary principle that costs are to be paid on the standard basis, Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1985) 81 ALR 391; Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225.

[12]  The orders are:
In each application and appeal:

 

1. the respondent pay the appellant’s costs of and incidental to the applications for leave and the appeal to be assessed on the standard basis;

2. the solicitors for the respondent pay the appellant’s costs of the hearings in the District Court to be assessed on the standard basis.

Close

Editorial Notes

  • Published Case Name:

    Gitsham, Edwards & Jensen v Suncorp Metway Insurance Ltd

  • Shortened Case Name:

    Gitsham v Suncorp Metway Insurance Ltd

  • MNC:

    [2002] QCA 416

  • Court:

    QCA

  • Judge(s):

    Davies JA, Williams JA, White J

  • Date:

    11 Oct 2002

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Caboolture Park Shopping Centre (in liq) v White Industries (Qld) Pty Ltd (1993) (1993) 45 FCR 224
2 citations
Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 F.C.R 225
2 citations
De Sousa v Minister for Immigration (1993) 41 FCR 544
2 citations
Deputy Commissioner of Taxation v Levick (1999) 168 ALR 383
2 citations
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1998) 81 ALR 391
1 citation
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1985) 81 ALR 391
1 citation
Hill J confirmed on appea [2000] 44 ATR 315
1 citation
Knight v F. P. Special Assets Ltd (1992) 174 CLR 178
2 citations
Money Tree Management Service Pty Ltd v Deputy Commissioner of Taxation (No. 3 ) [2000] SASC 286
2 citations

Cases Citing

Case NameFull CitationFrequency
Bilic v Nicholls [2014] QDC 482 citations
Bilic v Nicholls [2014] QDC 1091 citation
Campbell v Campbell [2012] QSC 3021 citation
Gitsham v Suncorp Metway Insurance Limited[2003] 2 Qd R 251; [2002] QCA 3101 citation
Grealy v State of Queensland [2022] QDC 2312 citations
Groupline Constructions Pty Ltd v CDI Lawyers Pty Ltd (No 2) [2024] QSC 2412 citations
TJR v The Public Trustee of Queensland and Anor [2022] QCATA 1762 citations
1

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