Chenoweth v AAPH Pty Ltd[2004] QDC 573

[2004] QDC 573

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No BD3836 of 2004

BRISBANE

DATE 22/11/2004

ORDER

HIS HONOUR:  This is a novel matter in my experience but it raises a point of principle for purposes of the Personal Injuries Proceedings Act 2002.  The applicant and potential plaintiff is an infant proceeding by his litigation guardian. 

On the 19th of April 2000, he was injured in a holiday accident when he suffered damage to his teeth on using a water slide which enabled him to enter a swimming pool in an exciting way.  It was not until 27th of March 2003 that the applicant or those interested in pursuing a claim for him served a form 1 notice under the PIPA on All Seasons Alexandra Beach Resort Proprietary Limited which was taken to be the relevant defendant should proceedings be instituted.

The solicitors for that company on the 2nd of June 2003 advised that the PIPA notice was compliant subject to investigations as to whether their client was the proper respondent.  On the 22nd of September 2003, a follow up communication advised that it was not.  On 23rd of October 2003, advice came that that company had been deregistered.  The applicant's solicitors requested information as to the proper party on the 3rd of November 2003 and a week later came a refusal by the solicitors to supply it.

On the 23rd of December 2003, the applicant's solicitors identified the respondent in the application, AAPH Pty Limited, and served it.  The same solicitors represent AAPH Pty Limited as had represented the deregistered company.  Mr Faulkner, appearing for the applicant, has been careful to make it clear that no criticism is made of the firm.  It is not for them to potentially prejudice their client's situation by gratuitously identifying their client as the proper entity to face a claim within PIPA or any other claim and possible follow-up litigation.

On the 21st of January 2004, the firm advised that they acted for AAPH Pty Limited and that, subject to their inquiries, it was the proper respondent.  Confirmation in that regard came on the 6th of February 2004 and four days later the applicant's solicitors advised they would nominate a date for a compulsory conference.  The difficulties that have followed all concern identification of a suitable date for a compulsory conference.  The solicitors on the respondent's side have advised that a conference was inappropriate until their investigations were complete. 

On the 10th of May 2004, the applicant's solicitors threatened an application pursuant to section 36(5) of the PIPA if there was no consent to their offer of a compulsory conference within seven days.  This elicited advice that a number of contribution notices were outstanding and that participation in a compulsory conference before responses from the contributors had come in was inappropriate.

Mr Lewis, appearing for the respondent, has identified one contributor in particular, namely Cordukes, which was the principal building contractor and the person responsible for the construction and design of the pool and water slide, as the entity responsible for their inability, which was becoming embarrassing, to cooperate in relation to fixing of the conference.  It was as long ago as the 17th of May 2004 that notices claiming contribution went out.

After further attempts by the applicant's solicitors to propose an acceptable date for a compulsory conference, they resorted to threatening the present application which is one pursuant to section 36(5)(a) of the PIPA that the respondent participate in a compulsory conference as nominated by the applicant.

The application was filed on the 26th of October 2004.  It has been a productive application in the sense that it is agreed that the compulsory conference will take place on an identified date in February 2005.  The parties will no doubt comply with the agreement made so it is not appropriate for the Court to make any order for a conference. 

The issue today is costs.  It is suggested by the respondent that costs be reserved.  It may be that the applicant's claim ultimately fails.  It is unattractive to reserve costs in that doing so may commit the parties to further costs simply in pursuit of costs.  I think that so much time has passed that it is salutary for the Court to make known to the respondent and others in its position that the costs saving or supposedly costs saving regime of the PIPA and other similar legislation pertinent in other fields of litigation requires cooperation of potential litigants to a degree which, in former times, would not have been expected.

If Cordukes or anyone else can be blamed it may be that the responsibility can be sheeted home to them in due course. 

I regard the response that the plaintiff has faced as unacceptable and, for that reason, propose to exercise the discretion the Court has in respect of costs under the UCPR to make an order against the respondent, although I am not persuaded it should be the whole of those costs. 

We do have a situation where I think it appears the intervention of the Court was properly brought about by the applicant to advance matters. 

Mr Faulkner or those instructing him made it clear to the Court that they accept the risk there may be in the Court's splitting the costs issue by making an order for part of the applicant's costs now and, inconsistently with the sentiment expressed above, reserving for later consideration whether the applicant gets the rest of the costs.  The applicant may not think it worthwhile pursuing further costs even if advised that a claim for costs may be split in the way referred to.

So, the Court's orders are as follows:  order that the respondent pay one-half of the applicant's costs of the application to be assessed.  As to the other half of the applicant's costs, those are reserved. 

The application is adjourned to a date to be fixed for determination of the applicant's claim that the respondent pay the balance of his costs.