French v Olson
[1996] QDC 30
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- Unreported Judgment
- French v Olson[1996] QDC 30
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French v Olson[1996] QDC 30
French v Olson[1996] QDC 30
DISTRICT COURT | Plaint No 1343 of 1994 |
CIVIL JURISDICTION
SENIOR JUDGE SKOIEN
YVONNE FRENCH | Plaintiff |
and
PATRICK KARL OLSON | Defendant |
BRISBANE
DATE 06/03/96
JUDGMENT
HIS HONOUR: For the reasons which I now publish I have assessed damages at $126,730. I give judgment for that sum.
...
HIS HONOUR: I give leave to file and read the affidavit of Ms Swann but I strike out those parts of paragraph 14 which purport to relate to the state of mind and belief of Mr King, and all of paragraph 15, which I rule are hearsay.
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HIS HONOUR: As I have recorded in my reasons for judgment, the trial of the action was begun before Her Honour, Judge O'Sullivan, in November 1995. The use in cross-examination of the plaintiff on evidence which was obtained on non-party discovery in the husband's action, led Her Honour to find that there had been a mistrial. She made a finding that the material had been improperly used and that she could not dismiss its impact from her mind.
The plaint was then amended to claim aggravated damages for the conduct of the defence in improperly using the material. In the upshot, the claim was abandoned for want of persuasive evidence to support it. Mr Hanson, QC, submits that the defendant should have any costs thrown away by reason of the amendment and I think it is clear that he is entitled to them. It was a fresh issue which was raised after an aborted trial and may well have caused the defence to take quite new steps.
Whether the defence actually did so, and at what expense, is a matter for the Taxing Master, of course. However, I think this involves quite a different principle from the standard one which was considered in Hughes v. West Australian Cricket Association Inc., (1986) A.T.P.R. 48, 134.
The application which was made by Mr Hanson was also for a certification for the appearance of two counsel. However because this action was one for more than $50,000, the matter appears to be decided by Patterson-Walls v. FAI General Insurance Company Limited, (1995) 1 Qd.R. 282. That case decides that because of the provisions of the District Court Scale of Fees, while I am able to certify for senior counsel in an action for less than $50,000, I may not do it in an action for greater than $50,000. The discretion is left to the Taxing Master.
I might say that I was by no means satisfied that this action, even with the amendment, was of sufficient importance or complexity to call for senior counsel.
The plaintiff made an offer to settle on 21 November 1995, which was not accepted. The plaintiff has, by my judgment, obtained a more favourable result. I apply, therefore, rule 118 (1) of the District Court Rules and order that the defendant pay the plaintiff's costs of and incidental to the action to be taxed on a solicitor and client basis, excluding any costs incurred by the plaintiff by reason of the amendment to the plaint to add paragraph 11.
I order the plaintiff to pay to the defendant his costs incurred by reason of that amendment to be taxed.
The matter is complicated by the fact that Judge O'Sullivan, on 20 November 1995, ordered the defendant to pay the plaintiff's costs thrown away by reason of the mistrial, to be taxed on a party and party basis. Then, on 12 December 1995, Judge Forno, on an unsuccessful application by the defendant to have the husband's action heard with Mrs French's action, ordered the defendant to pay the plaintiff's costs of and incidental to that application, to be taxed. The file is endorsed that His Honour expressed his “intention” that the application was a matter which required senior counsel.
I do not know that I have any power to make an order negating His Honour's “intention” but it does seem to me that Patterson-Walls prevented His Honour from making that order. I think I must leave that question to be resolved between the parties and the taxing officer or perhaps by a higher Court.
However, I do think that there is something I can do about the quantum of the costs ordered by their Honours Judges O'Sullivan and Forno. Rule 118(1) seems to me to be of general application once a defendant has not availed himself of what has turned out to be a proper offer to settle. The trial judge is permitted to act with hindsight and to order solicitor and client costs. I am anxious not to appear to sit on appeal from their Honours and so I do not purport to vary their orders. However I order that the defendant also pay to the plaintiff the difference between the costs ordered by Judge O'Sullivan on 20 November 1995 and Judge Forno on 12 December 1995, as taxed on a party and party basis and the amount which would be arrived at by taxation on a solicitor and client basis.
I order that today's costs be the plaintiff's cost in the cause.
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HIS HONOUR: I further order that the money payable to the plaintiff pursuant to this judgment be not paid to the plaintiff until the Managing Director of the Health Insurance Commission issues a notice of charge pursuant to the “Health and Other Services Compensation Act 1995” - with liberty to apply.
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I give leave for both parties to appeal my order for costs.