Parry v Woolworths Limited (No. 2)
[2008] QDC 232
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- Unreported Judgment
- Parry v Woolworths Limited (No. 2)[2008] QDC 232
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Parry v Woolworths Limited (No. 2)[2008] QDC 232
Parry v Woolworths Limited (No. 2)[2008] QDC 232
DISTRICT COURT OF QUEENSLAND
CITATION: | Parry v Woolworths Limited (No. 2) [2008] QDC 232 |
PARTIES: | MERVYN PARRY (Plaintiff) v WOOLWORTHS LIMITED (Defendant) |
FILE NO/S: | BD 776/06 |
DIVISION: | Civil |
PROCEEDING: | Trial – Costs Decision |
ORIGINATING COURT: | District Court, Brisbane |
DELIVERED ON: | 21 August 2008 |
DELIVERED AT: | Brisbane |
HEARING DATE: | Written submissions |
JUDGE: | Searles DCJ |
ORDERS: | (a) As to the 2008 trial, no order as to costs;
|
COUNSEL: | R. Myers – Plaintiff D. North SC & R. Whiteford – Defendant |
SOLICITORS: | Shine Lawyers – Plaintiff DLA Phillip Fox - Defendant |
- [1]On 17 June 2008 I delivered judgment dismissing the plaintiff’s claim. I adjourned the question of costs to allow the parties to make written submissions which I have now received. The defendant seeks leave to read and file an affidavit of Sean Anthony Sullivan sworn 18 June 2008. That was not opposed by the plaintiff and leave is granted.
- [2]The issue of costs covers three discrete sets of costs:-
- (a)the costs thrown away upon the adjournment of the trial of the matter before Judge Forno QC DCJ on 16 May 2007;
- (b)the costs in relation to an application by Q-Comp and the defendant to set aside three subpoenas issued by the court on the request of the plaintiff directed to three orthopaedic surgeons; and
- (c)the costs of the 2008 trial before me.
- [3]Between the delivery of judgment on the substantive claim on 17 June 2008 and the delivery of this judgment an appeal to the Court of Appeal was lodged on 11 July 2008 seeking inter alia, orders as to costs. In light of that appeal I notified both parties that I did not consider it appropriate for me to deal with the issue of costs if the Court of Appeal was seized of it. Subsequently the plaintiff conceded in a letter from his solicitors that the appeal may not be competent in that no final order as to costs had been given. Both parties agree that I should decide the question of costs reserve which, on reflection, is clearly the correct course given that no final order had been made.
I shall deal firstly with the costs of orders (b) and (c) above.
Costs of 2008 trial – Forno QC DCJ
- [4]The relevant provision as to costs is s 316 of the Workers’ Compensation and Rehabilitation Act 2003 (WCRA) which, relevantly, provides:-
“S 316 Principles about orders as to costs
- (1)No order about costs, other than an order allowed under this section, is to be made by the court in the claimant’s proceedings.
- (2)…
- (3)…
- (4)An order about costs for an interlocutory application may be made only if the court is satisfied that the application has been brought because of unreasonable delay by 1 of the parties.
- (5)…
- (6)…”
- [5]Whilst reserving its position to argue that the decision in Sheridan v Warrina Community Co-Operative Ltd [1] was wrongly decided, the defendant submits that, in reliance on that decision, I am unable to make an order for costs against the plaintiff in circumstances as here present where the plaintiff’s claim was dismissed. In my view that submission is correct. Even though the court in Sheridan was dealing with an earlier provision, s 325 of WorkCover Queensland Act 1996 (WCQ), I consider there is no material difference between that section and s 316 of QCRA here under consideration. I accordingly make no costs order for the 2008 trial.
Reserved costs re application to set aside subpoenas
- [6]At the beginning of the trial the defendant and Q-Comp made application to set aside three subpoenas issued at the request of the plaintiff against three orthopaedic surgeons, Drs. Outerbridge, Hewitt and Tuffly. The application was successful and I ordered the plaintiff to pay the costs of Q-Comp and reserved the issue of costs as between the plaintiff and the defendant.
- [7]The defendant says that no order should be made in relation to these costs because under s 316(4) of WCRA an order for costs for an interlocutory application may be made only if the court is satisfied that the application has been brought because of unreasonable delay by one of the parties. The defendant, correctly in my view, submits that there is no evidence of any such delay by any party. I find there is no evidence of delay sufficient to trigger s 316(4).
- [8]The plaintiff agrees that no order should be made against him under s 316(4) but submits that the defendant should indemnify him against Q-Comp’s costs ordered to be paid by him. The basis of that application is that the defendant was guilty of unreasonable delay in consenting to the admission into evidence of the decision of the Orthopaedic Assessment Tribunal of 1 February 2005.[2] Nothing was put before me to evidence the seeking of the admission from the defendant or its failure to consent so, even if there was merit in the admission point, I am unable to determine whether or not any such alleged delay was or was not unreasonable.
- [9]But the plaintiff has another difficulty with his argument because at the trial when his counsel Mr Myers sought to admit that decision into evidence I ruled that it was not admissible.[3] Given that decision, it would be very difficult for the plaintiff to establish a foundation for an argument that the defendant, in declining to admit the tribunal decision, was acting other than in accordance with its rights. I accordingly dismiss the plaintiff’s application for indemnity by the defendant for Q-Comp’s costs. In relation to the costs of the application to set aside the subpoenas, I make no order.
Costs of trial before Judge Forno QC 16 May 2007
- [10]Each of the plaintiff and the defendant seeks an order for indemnity costs against the other.
- [11]On the morning of the trial the plaintiff sought leave to amend his statement of claim which was not opposed.[4] He also sought leave to file a Reply to the defendant’s defence filed on 29 March 2006 some thirteen and a half months earlier than the trial. The defendant objected to that application.[5]
- [12]The Reply raised the estoppel issue which I have dealt with in my judgment.[6] The plaintiff’s concern and reason for the proposed Reply related to the dispute over the date of the injuries which has been addressed in my judgment. There were three critical dates 27 August 2003, 17 September 2003 and 19 November 2003. The plaintiff sought to stop the defendant from alleging that the subject injuries occurred on either 27 August 2003 or 17 September 2003. The plaintiff’s case was that it occurred on 19 November 2003.
- [13]In seeking leave to file the Reply the plaintiff’s counsel said he had only the day before (15 May 2007) been provided with a file note of a telephone conversation between Dr Williams and Mr Whiteford counsel for the defendant of 26 March 2007.[7] He further said that the content of that note was contrary to everything Dr Williams had previously said after examining the plaintiff in relation to the events of 27 August 2003, 17 September 2003 and 19 November 2003. Essentially the plaintiff said he was taken by surprise because, according to him, the defendant had indicated on 17 March 2005, the date of the three Notices of Assessment[8] under the Act that the two earlier incidents gave rise to nothing more than soft tissue injuries and, in acting on this, he had prosecuted his claim.[9] Given the Dr Williams / Mr Whiteford telephone memo that had changed and he was entitled to plead the estoppel.
- [14]In response the defendant pointed to paragraphs 14 and 17 of its defence filed on 29 March 2006. It argued that paragraph 14 had clearly denied the allegation that the injury had occurred on 19 November 2003 and pleaded that the plaintiff had suffered the prolapsed disc injury as a result of constitutional degenerative disc disease or events which occurred prior to 19 November 2003 or after. Similarly, the defendant argued that in paragraph 17 it denied any injury had been suffered by the plaintiff as a result of the 19 November 2003 incident; and that any injury, loss or damage was attributable to the effects of constitutional degeneration of the plaintiff’s lumbosacral disc and/or as a result of incidents occurring prior to 19 November 2003 and / or as a result of incidents which occurred after 19 November 2003.[10] In both paragraphs 14 and 17 the particulars referred to the records of Ms Elizabeth Brownley and those of the Ipswich Road Medical Centre, both of which records implicated the 27 August 2003 and 17 September 2003 incidents as causing the prolapse.[11]
- [15]It seems clear to me that the plaintiff was on notice of the defendant’s case as early as the date of delivery of the defence on 29 March 2006. In my view the pleading could not be clearer in disputing that the subject injury occurred on 19 November 2003 but, if I am wrong, and it did lead to some lack of clarity in the minds of the plaintiff and his advisors then it was for the plaintiff to seek appropriate further and better particulars to clarify any uncertainty. At the very latest upon provision of those particulars the plaintiff would have been in a position to deliver a Reply. I consider that the application for leave to deliver the Reply was brought with unreasonable delay within the meaning of that term in s 316(4) of WCRA and that on that basis the defendant is entitled to its costs of that application.
- [16]I am further satisfied on the authority of Jose v Amalgamated Food and Poultry Limited[12] that the costs thrown away on the adjournment of the trial properly fall within the costs contemplated by s 316(4). Although the court was there dealing with s 182C(6) of Workers’ Compensation Act 1990 which referred to an order “as to costs”, I do not see any relevant difference between that term and the term “about costs” in WCRA s 316(4) here under consideration. The first day of the trial was the first the defendant had heard of the plaintiff’s desire to amend its pleading to allege estoppel and it was thereby placed in a position where it was not able to proceed to trial without the benefit of an adjournment to meet the plaintiff’s amended case.
Indemnity costs
- [17]The defendant also seeks indemnity costs.
- [18]
- (1)The problem arises in adversary litigation and different considerations apply where parties are to be paid out of a fund or assets administered by a trustee liquidator or the like;
- (2)The ordinary rule is that, where the Court orders the costs of one party to litigation to be paid by another party, the order is for payment of those costs on the party and party basis;
- (3)This practice is entrenched in Australia and if it is to be altered it should be done by legislation (rule amendment) or by decision of an intermediate Court of Appeal or High Court;
- (4)In consequence of the settled practice, the Court ought not usually make an order for the payment of costs on some basis other than the party and party basis. The circumstances of the case must be such as to warrant the Court in departing from the usual course. Various tests have been described such as “as and when the justice of the case might so require” or “that there should be some special or unusual feature in the case”;
- (5)Some instances of circumstances which would warrant the exercise of the discretion to depart from the usual practice were making allegations of fraud knowing them to false; evidence of particular misconduct causing loss of time to the Court and to the other parties; the commencement or continuation of proceedings for some ulterior motive; the making of allegations which ought never to have been made; the undue prolongation of the case by groundless contentions; or the imprudent refusal of an offer to compromise;
- (6)Finally, even though circumstances may exist warranting the exercise of the discretion to award indemnity costs, that does not mean that the Court is necessarily obliged to exercise that discretion to make such an order.
His Honour accepted that the categories of appropriate circumstances for an indemnity costs order were not closed and that, apart from the examples he mentioned, others would arise in the future with different features.[15]
- [19]In Di Carlo v Dubois & Ors [16] the Court of Appeal considered an appeal from an order awarding indemnity costs and at paragraph 40 said:-
“It is important that applications for the award of costs on the indemnity basis not be seen as too readily available when a particular party against whom the order is sought is seen to carry responsibility for the state of affairs calling for a costs order without some further facts analogous to those mentioned in Colgate and other considered decisions.”
- [20]The defendant concedes that there needs to be some evidence of unreasonable conduct to justify my departing from the ordinary practice of ordering costs on a standard basis. It argues that the unreasonable delay in making the application for leave to file the reply is sufficient to warrant an order and points to Jose, a case it says is factually analogous to the present and where Indemnity costs were ordered on the adjournment of the trial.
- [21]But in that case Mackenzie J. expressed concern[17] as to ongoing disregard of the court Rules by the defendant’s solicitors. The length of the trial was not completed in the filed certificate of readiness, the solicitors did not attend the callover when the matter was set down for an inadequate two days, they contacted the lists clerk to advise that the trial would go longer than the two days allotted without consulting the plaintiff’s solicitors, there was no formal request to admit evidence. Further, His Honour identified the defendant’s apparent failure to analyse the complexities of the case until a late stage which he found unacceptable in the contemporary case management context, the last minute attempt to obtain expert evidence, and the defendant’s proposed course to call medical witnesses without obtaining statements resulting from the doctors declining to provide evidence other than on subpoena. That risked the plaintiff not being properly apprised of the evidence risking further inconvenience and delay resulting from the possible need for the plaintiff to lead rebuttal evidence.
- [22]Whilst one may point to some common features between that case and the present, I do not see it as the same as the present. Essentially this is one of delay which I am not satisfied is sufficient conduct on the part of the plaintiff to justify an order for indemnity costs. I order that costs be paid on a standard basis.
Plaintiff’s application for indemnity costs of 2007 trial
- [23]It will be apparent from the above that I have found no basis for the plaintiff to be awarded costs of the 2007 adjournment, indemnity or otherwise.
- [24]The orders as to costs will be:
- (a)As to the 2008 trial I make no order as to costs;
- (b)As to the 2008 trial reserve costs relating to the application to set aside subpoenas, I make no order as to costs as between the plaintiff and the defendant. I dismiss the plaintiff’s application for indemnification by the defendant in relation to the Q-Comp costs order to be paid by him;
- (c)As to the 2007 trial I order the plaintiff pay the defendant’s costs of the adjournment thrown away on a standard basis.
Footnotes
[1] [2005] 1 Qd R 187.
[2] Plaintiff’s written submissions, paragraph 2.
[3] Transcript day two, p 30, lines 48-60; day one, pp 36, 37 and 38.
[4] Transcript p 2, line 25.
[5] Transcript p 2, line 38.
[6] Judgment p 17, June 2008 paragraphs 88-97.
[7] 2007 trial transcript p 4, line 19.
[8] Exhibits 25, 26 and 27.
[9] 2007 trial transcript p 7, line 20.
[10] 2007 trial transcript p 8, lines 25-50.
[11] Reasons for judgment paragraphs [31]-[45].
[12] [2000] 2 Qd R 511.
[13] (1993) 46 FCR 225.
[14] (1993) 46 FCR 225 at paragraph 24.
[15] [1993] 46 FCR paras 21& 24
[16] [2002] QCA 225.
[17] Pages 513-314