Smith v Professional Suites Community Title Scheme
[2008] QDC 267
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- Unreported Judgment
- Smith v Professional Suites Community Title Scheme[2008] QDC 267
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Smith v Professional Suites Community Title Scheme[2008] QDC 267
Smith v Professional Suites Community Title Scheme[2008] QDC 267
DISTRICT COURT OF QUEENSLAND
CITATION: | Smith v Professional Suites Community Title Scheme [2008] QDC 267 |
PARTIES: | JODY SMITH (Applicant/Plaintiff) v PROFESSIONAL SUITES COMMUNITY TITLE SCHEME 14487 (Respondent/Defendant) |
FILE NO/S: | 3873/2004 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | District Court Brisbane |
DELIVERED ON: | 20 November 2008 |
DELIVERED AT: | Beenleigh |
HEARING DATE: | Written Submissions |
JUDGE: | Dearden DCJ |
ORDER: | That the costs of and incidental to the hearing of 22 August 2008 be each party’s costs in the action |
CATCHWORDS: | Application – costs – legislation |
LEGISLATION: | Uniform Civil Procedure Rules (UCPR) r 483, r 483(1) |
CASES: | Smith v Professional Suites Community Title Scheme [2008] QDC 252 |
COUNSEL: | Dr G J Cross for the applicant/plaintiff Mr D Giacomantinoi for the respondent/defendant |
SOLICITORS: | Colin Patino & Co for the applicant/plaintiff Moray & Agnew for the respondent/defendant |
Introduction
- [1]On 17 October 2008 I delivered a decision in respect of an application by the plaintiff seeking to determine the expertise of an expert witness prior to trial pursuant to Uniform Civil Procedure Rules (UCPR) r 483[1].
- [2]As I noted in the substantive decision[2], the plaintiff/applicant and the defendant/respondent agreed on 10 June 2008 to have the issue of the expert witnesses expertise decided as a preliminary point before me, but subsequently retracted that agreement when the matter came before me for argument on 22 August 2008. Ultimately, I was persuaded by the defendant/respondent that UCPR r 483(1) was not, either in law, or in the exercise of my discretion, apposite to decide the question that had (initially at least) by consent been the subject of the application. As I indicated in the substantive judgment “such a retraction may sound in respect of the issue of costs”[3].
- [3]In my view, the plaintiff was (self-evidently) unsuccessful, which would ordinarily entitle the defendant to its costs. However, the proposed mechanism for assessing the expert witnesses’ expertise was substantially a “joint enterprise” (although I note that the defendant’s solicitors forwarded correspondence dated 15 August 2008 asserting their argument that “Rule 483 [was] not an appropriate vehicle for the determination of the admissibility or otherwise of an expert report.”[4]) It seems to me a situation in which the exercise of the discretion as to costs should not be the usual award of costs following the event, but rather that the costs of and incidental to the hearing of 22 August 2008 be each party’s costs in the action.
Order
- [4]Accordingly, I order that the costs of and incidental to the hearing of 22 August 2008 be each party’s costs in the action.
Footnotes
[1] Smith v Professional Suites Community Title Scheme [2008] QDC 252
[2] Smith v Professional Suites Community Title Scheme [2008] QDC 252, paragraph 11
[3] Smith v Professional Suites Community Title Scheme [2008] QDC 252, paragraph 11
[4] Exhibit RJC25, Affidavit of Richard Clayton sworn 21 August 2008