DISTRICT COURT OF QUEENSLAND

1. [1]
   When I gave judgment in this case on 15 April 2009 I made orders that the applicant and the respondent file written submissions as to the payment of costs. The parties have since delivered their submissions.

2. [2]
   The originating application filed on 3 April 2009 was for orders:

1. That the respondent provide the applicant with a response to the request for information delivered by the applicant pursuant to section 27 of the Personal Injuries Proceedings Act 2002 on 17 November 2008, within seven (7) days.

2. that such response be by way of Statutory Declaration.

3. the respondent pay the applicant’s costs of the application pursuant to section 27(4) of the Personal Injuries Proceedings Act 2002.

4. Such further or other Order as this Honourable Court may deem appropriate.

In this judgment I refer to the above Act as the “PIPA”.

3. [3]
   The requests for information were numbered from 1 to 14. Because two of these involved requests for both information and documents,^[1] the respondent’s submission proceeds on the basis that there were 16 requests.

4. [4]
   Before the application was heard, the respondent’s solicitors notified the applicant’s solicitors that their client undertook to comply with five of the requests within 14 days.^[2]  One of these requests related to documents and the remainder were for information. In relation to the request to provide copies of all documents relating to the incident on 22 August 2008, the solicitors advised that their client agreed that it had an obligation to provide these documents if they exist. The advice in respect of the requests for information was that their client considered them to be proper requests. The applicant’s solicitors responded on 9 April 2009 that they were agreeable to allowing 14 days to provide this information.^[3]

5. [5]
   The applicant also agreed not to pursue requests Nos 3, 8 and any part of requests Nos 13 and 14 which related to documents. Although in the 9 April response, the applicant’s solicitors had maintained these requests, it was conceded prior to the hearing of the application that there was no entitlement to documents. Request No. 8 was as follows:

“We are aware that an employee of the Tavern by the name of Tanya Stumer witnessed the incident. We ask that you provide us with a Statutory Declaration containing the following information:

• -Provide full details of what she witnessed.
• -What was Tanya doing at the time of the incident?
• -Did she witness the incident involving some patrons prior to the incident involving the security guard?  If so, please provide full details.
• -Please provide a diagram of where each party was standing at the time of the incident.”

The respondent’s solicitors advised that there is no property in a witness, and suggested that if the applicant wished to obtain information from her, that she be contacted to provide a statement. They pointed out that the respondent was under no obligation to obtain this statement under s 27 of the PIPA.

6. [6]
   In the 9 April response, the applicant’s solicitors said that they did not require a response to be provided to request No. 8. The reason given for making the request for this information was that when the request was delivered, they were uncertain as to Ms Stumer’s involvement in the management of the business. Therefore, they requested information from the respondent directly prior to seeking information from her. They now acknowledged that as she was no longer employed by the respondent, they were able to obtain information from her themselves.

7. [7]
   In these circumstances when the application was heard it related to seven requests for information.^[4]  Each of these remaining requests was contested by the respondent who was represented by Mr R.C. Morton of Counsel. He submitted that the application should be dismissed with costs. In doing so he submitted that it was a cynical fishing exercise. He sought to support his argument by reference to some passages in the decision of Jerrard JA in Haug v Jupiters Limited [2008] 1 Qd R 276.^[5]  He submitted that the comments in these passages were relevantly indistinguishable in this case.

8. [8]
   However, as stated in my decision, I did not agree this case is indistinguishable from Haug. This was because Jerrard JA, and Williams JA whose judgment was also referred to in support of the respondent’s argument,^[6] were directing their attention to s 27(1)(a)^[7] and not to s 27(1)(b)(i) which was the provision under which the request was made in this case.^[8]  As is recognised in that case,^[9] the provisions are in different terms.^[10]

9. [9]
   Adopting the approach of Ambrose J in RACQ-GIO Insurance Limited v Ogilvie [2002] 1 Qd R 536 at 541 and 542, whose reasoning was applied in Haug, I concluded that the information sought in the seven requests should be provided.

10. [10]
    Accordingly I ordered:

1. The respondent provide the applicant with a response to questions 1, 2, 4, 5, 6, 13, and 14 of the request for information delivered by the applicant pursuant to s 27 of the Personal Injuries Proceedings Act 2002 on 17 November 2008 within seven days, excluding the related request to provide all relevant documentation with reference to questions 13 and 14.

2. Such response be by way of statutory declaration.

Applicant’s submissions

11. [11]
    Consequently, Mr Gibson correctly observes that the respondent was ordered to provide answers to all of the questions contested on the hearing of the application.

12. [12]
    He submits that the respondent should pay the applicant’s costs of the application for this reason and also because:

1. (a)
   the applicant had no choice but to file the application due to the considerable delay caused by the respondent and the complete lack of response; and

2. (b)
   the applicant will obtain answers to almost all of the information originally requested.

13. [13]
    In support of (a), he submits that after the request was sent to the respondent’s representative^[11] on 17 November 2008, numerous communications were had with that representative seeking that the requested information be provided.^[12]In relation to this submission the evidence before the court was that on 16 February 2009 Ms Stone, Account Manager of Proclaim Management Solutions Pty Ltd wrote to advise that she had been unable to find the 17 November 2008 letter, and asked to be provided with a further copy.^[13]  As a consequence, on 25 February 2009 the 17 November 2008 request was again sent, advising that if the requested information/documents were not received by 3.00 pm on 5 March 2009 an application would be filed against the respondent seeking this and costs.^[14]  On 27 February, Ms Stone replied that the respondent’s s 27 disclosure had been provided.^[15]  On 4 March 2009, Ms Stone advised that there was no record of the previous receipt of the 17 November 2008 letter and requested that the applicant’s solicitor provide further information, without which no response was able to be forthcoming.^[16]  On 6 March 2009 the applicant’s solicitors replied that all discoverable documents had been disclosed; acknowledged that there may have been a misinterpretation relating to their previous letters seeking information; and granted a further extension on the basis that the 17 November 2008 letter had been obtained by 25 February 2009 at the latest. On this occasion, they were advised that if the request was not complied with by 3.00 pm on 27 March 2009, an application would be filed against the respondent seeking the information and costs.^[17]

14. [14]
    When there was no response provided by the respondent by 27 March 2009, the application was filed.

15. [15]
    It is submitted that there was no suggestion prior to filing the application that this was not a proper request pursuant to s 27 of the PIPA until after the respondent’s solicitors received instructions to act in the matter on 7 April 2009. This was when these solicitors wrote to the applicant’s solicitors on 8 April 2008 agreeing to comply with five of the requests but raising issues as to the balance, seven of which were the subject of the argument before me.

16. [16]
    In these circumstances, Mr Gibson submits that the application was necessitated due to the respondent failing to provide any of the information requested prior to 3 April 2009 when the application was filed; and when the respondent’s solicitors raised the issue that this was not a proper request, the applicant had already incurred significant costs in court filing fees and preparation.^[18]

17. [17]
    Mr Gibson also submits that the applicant will receive a response to 12 out of the 14 questions from the original request (86%).

Respondent’s submissions

18. [18]
    As I have stated, the respondent proceeds on the basis that there were 16 requests. Ms Barber argues that the applicant succeeded in relation to 12 requests (75%) and therefore should be entitled to receive only 75% of his costs. This is calculated on the basis that I found in favour of the applicant in relation to seven of the requests; a further five were agreed to by the respondent prior to the application being heard; and the applicant conceded that he was not entitled to four of the requests.

Discussion

19. [19]
    Although neither party expressly referred to s 27(4) of the PIPA in their submissions, as set out at [2] the originating application sought that the respondent pay the applicant’s costs of the application under that section. Section 27(4) provides:

“If the respondent fails, without proper reason, to fully comply with this section, the respondent is liable for costs to the claimant resulting form the failure.”

20. [20]
    Section 27(2)(b) requires a respondent to:

“Respond to a request under subsection (1)(b) within the prescribed period under a regulation, or, if no period is prescribed, within one month after receiving it.”

21. [21]
    This provision governed the time period in which the respondent was required to respond insofar as this was a request for information under s 27(1)(b)(i) in the present case. No time period is prescribed under the Personal Injuries Proceedings Regulation 2002. Therefore the respondent was required to respond to the request within one month after receiving it.

22. [22]
    Even assuming in the respondent’s favour that the 17 November 2008 letter containing the request had not been received, at the very latest a copy of that letter was received by the respondent on 25 February 2009. This is established by exhibit “MSC9” to Ms Cheshire’s affidavit which proves that the letter was faxed on that date to the respondent’s representative, Proclaim Management Solutions Pty Ltd. This was not responded to in any way within the month after it was received, which concluded on 27 March 2009. This was the date referred to in the letter from the applicant’s solicitors of 6 March 2009 as being the final time for compliance if an application was not to be filed. In excess of one month had passed by the time the application had been filed seven days later. Further, during that period there was no suggestion by or on behalf of the respondent that this was not a proper request insofar as it was a request for information under s 27(1)(b)(i).

23. [23]
    In these circumstances, particularly having regard to the history of the matter as outlined in paragraphs [13] and [14], I agree with Mr Gibson that the making of the application was justified at this stage. The applicant had in fact shown considerable forbearance up to this time.

24. [24]
    Although prior to the application being heard, five requests were agreed to by the respondent and the applicant did not maintain four of the requests,^[19] the position is that by not providing the balance of the information requested within one month as required under s 27(2)(b) it had failed to comply fully with s 27. My decision rejecting the respondent’s opposition to providing the information and refusing to dismiss the application with the resultant order that the respondent provide answers to all the requests which were contested is a finding that this failure was without proper reasons.

25. [25]
    Accordingly, whether the applicant succeeded in request of 86% of the request or 75% of the requests, the respondent has failed, without proper reason, to comply fully with the section, and therefore under s 27(4) is liable for the applicant’s costs resulting from the failure.

26. [26]
    Section 27(4) is consistent with the starting point under the Uniform Civil Procedure Rules 1999 r 681(1) that the general rule is that costs follow the event.

27. [27]
    As I have said, the applicant was successful on all the requests which were contested before me. Put another way, he did not fail on any issue. In Oshlack v Richmond River Council (1998) 193 CLR 72 at 97, McHugh J said:

“The primary purpose of an award of costs is to indemnify the successful party. If the litigation had not been brought, or defended, by the unsuccessful party, the successful party would not have incurred the expense that it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for costs of the unsuccessful litigation.”^[20]

28. [28]
    In the present case the applicant would not have incurred the expense that he did if the respondent had responded to the request insofar as it related to information prior to the application being filed and if the remaining seven requests had not been contested by the respondent.

29. [29]
    Given the respondent argued that the application was a cynical fishing exercise which should be dismissed with costs and supported this by an eight page written submission relying on the authorities I have mentioned, the costs incurred by the applicant in preparing and responding to this argument would not have been significantly different than if the other requests which had originally been the subject of the application had also been argued before me.

30. [30]
    The fact that under the UCPR the respondent would not satisfy me that the applicant should receive other than the usual costs order supports my conclusion on the application of s 27(4) of the PIPA in the circumstances of the present case.

Conclusion

31. [31]
    Therefore, the Order will be that the respondent pay the applicant’s costs of and incidental to the application to be assessed on the standard basis.