Pietruszkiewicz v Whitfort[2003] QDC 207

CIVIL JURISDICTION

JUDGE McGILL SC

and

BRISBANE

DATE 19/06/2003

JUDGMENT

HIS HONOUR: I have already published reasons in relation to this matter. I have circulated reasons to the parties, and I formally publish the reasons now.

I give judgment that the defendants pay the plaintiffs the sum of $8,781. I will hear submissions in relation to costs.

...

HIS HONOUR: In relation to the costs of this matter, as I foreshadowed, the prima facie position is that the defendants would pay the plaintiffs' costs of the action to be assessed.

The effect of the rules is that these would be assessed on the applicable Magistrates Court scale unless there were some reason to order otherwise because the amount recovered is an amount which could have been recovered in the Magistrates Court.

There is another issue about costs, but I will leave that for the moment.

In relation to the scale on which the costs should be assessed, it is conceded on behalf of the plaintiffs that this is not a situation where there was any jurisdictional difficulty in bringing the proceeding in the Magistrates Court. The position was simply that the plaintiffs had a claim which raised a number of potentially complicated issues of law and fact, but ultimately one which led to recovery of a sum which was a good deal less than the amount claimed.

The amount claimed was beyond the jurisdiction of the Magistrates Court, but aspects of that claim, I think, were unrealistically optimistic. It ought to have been apparent to the plaintiffs or the plaintiffs' advisors before the action commenced, or at least before the time of the trial, that there was no realistic possibility of achieving an award of damages which was in excess of the jurisdiction of the Magistrates Court.

The complexities, such as they are, are not, in my opinion, sufficient to justify bringing a claim - which proved ultimately to be a claim for less than $10,000 - in the District Court rather than Magistrates Court. I think that the complexities were not such that a Magistrate might not have been expected to navigate through them successfully. I was wondering if the costs might have been reduced by trying the matter in the Magistrates Court at Stanthorpe, but perhaps they would not. Some witnesses would have been local, but there were other people coming from Brisbane anyway.

However, the costs would have been reduced by trying the action in the Magistrates Court, and, on the whole, I do not think there is sufficient reason to depart from the prima facie position established by the rules.

One other issue in relation to costs is whether the costs should be reduced because of the fact that a particular claim for damages, assessed on the basis of digging up stumps and replanting and maintaining seedlings, was included and failed completely. I think it is fair to say that was not a major part of the time taken at the trial, but it did involve some time with a number of witnesses and some time of the parties when they gave evidence. It was an area which, I think, could have been avoided and should have been avoided completely.

It has been suggested that rather than make a special order in relation to the assessment, I should mitigate, or reduce by means of a percentage, the costs payable to the plaintiffs, and I am happy to do that. I will take into account in doing that the fact that liability was in issue up until the commencement of the trial.

My assessment of the extent to which there was time taken, and perhaps expense, in relation to witnesses incurred specifically in relation to that issue, on that basis I would reduce the costs by 10 per cent.

I will order the defendants pay the plaintiffs' costs of the action to be assessed on Scale E of the Magistrates Court scale less 10 per cent.

The only other thing that I was wondering about are these of cumbersome exhibits, the photo album and the large photograph. I was wondering if I could return those two exhibits to you now, Mr Roney, on the undertaking that if an appeal is instituted, that they will be returned or made available to the Court of Appeal.

MR RONEY: I think there is little prospect of any appeal. If there are any other exhibits that you wish returned, I am happy to take those on the same basis.

MS PHILIPSON: I have no objection.

HIS HONOUR: Are you willing it take the defendants' exhibits on the same basis?

MS PHILIPSON: Yes.

HIS HONOUR: If an appeal is instituted, you undertake to make them available to the Court of Appeal?

MS PHILIPSON: Yes, your Honour.

HIS HONOUR: I will also direct that the exhibits be returned to the parties tendering them forthwith.

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