Shortis v Mr Carpet (Gold Coast) Pty Ltd (No 2)
[2003] QDC 377
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- Unreported Judgment
- Shortis v Mr Carpet (Gold Coast) Pty Ltd (No 2)[2003] QDC 377
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Shortis v Mr Carpet (Gold Coast) Pty Ltd (No 2)[2003] QDC 377
Shortis v Mr Carpet (Gold Coast) Pty Ltd (No 2)[2003] QDC 377
![Shortis v Mr Carpet (Gold Coast) Pty Ltd (No 2) [2003] QDC 377](/judgmentview/image?name=315710.001.png&id=315710)
DISTRICT COURT OF QUEENSLAND
CITATION: | Shortis v Mr Carpet (Gold Coast) Pty Ltd (No 2) [2003] QDC 377 |
PARTIES: | JOHN KINGSLEY SHORTIS Applicant/Plaintiff and mr carpet (gold coast) Pty Ltd (ACN 010 182 126) First Defendant and hudson conway limited (ACN 009 556 629) Second Defendant and multiplex (qld) pty ltd (ACN 010 898 816) Third Defendant and workcover queensland Fourth Defendant |
FILE NO: | D630/1998 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | District Court of Queensland, Southport |
DELIVERED ON: | 17 September 2003 |
DELIVERED AT: | Southport |
HEARING DATE: | 12 August 2003 |
JUDGE: | Alan Wilson SC, DCJ |
ORDER: |
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CATCHWORDS: | COSTS – COSTS OF APPLICATION FOR LIBERTY TO PROCEED – COSTS OF APPLICATION TO HAVE AN ISSUE DETERMINED SEPARATELY – where respondents opposed different parts of the application – whether applicant usually obliged to pay costs of application for leave to take a step Uniform Civil Procedure Rules, rr 389(2), 483 and 689(1) |
COUNSEL: | Dr G J Cross for the applicant plaintiff Mr R Perry for the respondent third defendant Mr B L P Hoare for the respondent fourth defendant |
SOLICITORS: | Hoolihan’s Lawyers for the plaintiff Minter Ellison for the third defendant Hogood Ganim for the fourth defendant |
- [1]This application by the plaintiff was heard on 12 August 2003 and, in Reasons published on 26 August, it was ordered that the plaintiff have liberty to take a new step, notwithstanding no step was taken for two years in the period 22 May 2001 to 28 May 2003, and that the question whether the plaintiff was at the time material to the action a “worker” as that term was defined in the Workers Compensation Act 1990 in the employ of the first defendant be determined separately before the trial of the action.
- [2]Under UCPR r 689(1) the costs of a proceeding (including an application in the proceeding) are in the discretion of the court but follow the event unless the court considers another order is more appropriate.
- [3]The third defendant opposed the application for leave to proceed but did not wish to be heard in respect of the application for determination of a separate question, under r 483. The fourth defendant did not, in its written submissions, oppose the application for leave to proceed but in oral submissions during the hearing appeared to take a different position. It did contest the application under r 483.
- [4]The relief sought under r 389 was in the nature of an indulgence. The plaintiff’s argument that he had, in fact, taken a step within the relevant period of two years was rejected. On any view, the respondents ought to have their costs in respect of that part of the application.
- [5]As to the request for a determination under r 483, the applicant plaintiff contended before me that the matter could be determined instanter, but the submission was rejected and the parties were given leave to apply for directions in respect of the steps necessary to resolve that issue before trial. A submission was accepted from the fourth defendant that, in the event early determination of the separate issue was permitted, it needed more time to prepare.
- [6]Although the third defendant did not oppose that part of the application, it was precipitate of the plaintiff to expect either or both respondents to be ready to argue that issue immediately in the Applications Court. At the same time, of course, because that was always likely to be impossible nothing has been lost to the parties by the bringing of the application, and the giving of further directions.
- [7]In those circumstances both respondents ought to have their costs of the application for leave to take a step but, as the plaintiff is an individual and those respondents are, respectively, a large public company and a statutory corporation, payment should be postponed until the end of the action, so I will order the plaintiff pay those costs in any event.
- [8]Secondly, costs relating to the application under r 483 ought, for the reasons set out above, be reserved to the Judge who determines the preliminary question, or further order.
- [9]The proceedings also need to be regularised. I will give all parties liberty to apply on 7 days notice.