State of Queensland v Gallagher
[2009] QDC 248
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- State of Queensland v Gallagher[2009] QDC 248
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State of Queensland v Gallagher[2009] QDC 248
State of Queensland v Gallagher[2009] QDC 248
[2009] QDC 248
DISTRICT COURT
CIVIL JURISDICTION
JUDGE ROBIN QC
No 1588 of 2009
STATE OF QUEENSLAND
and
SHARNA KAY GALLAGHER
DATE 22/06/2009
ORDER
CATCHWORDS: | Personal Injuries Proceedings Act 2002, s 36 - applicant for an order (consented to after filing of the originating application) that the claimant participate in a compulsory conference sought costs - applicant's letters found not to "call" the conference, but rather to threaten to do so unless the claimant provided further information - costs reserved, where claim seemed speculative, as his expert could not give an opinion whether at the relevant date a doctor had failed to diagnose meningitis, or whether meningitis had not by then struck |
HIS HONOUR: The question for the Court is whether the respondent ought be ordered to pay the applicant's costs of its originating application which succeeds in so far as, with the consent of the parties, the Court has made an order pursuant to section 36 of the Personal Injuries Proceedings Act 2002 that the parties participate in a compulsory conference before the 24th of July 2008.
The respondent/claimant, is also required to provide to the applicant material on which it's desired to rely at the compulsory conference no later than 14 days in advance of it. In the initialled draft order I've changed "it" to "she" in paragraph 2.
The parties are engaged in attending to the pre-litigation steps which the Act requires. There's no limitations problem. The respondent/claimant turned 18 on or about the 15th of January of this year.
The applicant's concern is that it's facing the trouble and attendant cost of preparing for a potential proceeding in court based on a claim which cannot succeed.
The claim is based on the asserted failure of a doctor at the hospital at Kingaroy to diagnose meningitis, the consequence of which was that not long afterwards, the claimant required fairly serious surgical intervention which she says has long-term consequences, entitling her to damages.
The applicant, by its solicitors, has been active in agitating to have provided the basis of the claim. Eventually a report of appropriately qualified expert, Dr Noyce was forthcoming in December last year.
As I read the report, it advances two possible scenarios, one in which the meningitis was present on the relevant date but missed by the doctor, the other in which the meningitis, if that's what it was, developed subsequently, so that there was no negligence.
Dr Noyce was unable to say or advance an opinion as to which is the correct scenario. Although Ms Wilson was reluctant to accept this, it seems to me inevitable that, if the evidence remained in the same state at a future trial, the claim must fail.
The applicant points to four letters sent this year to the respondent/claimant's solicitors as laying the foundation for an entitlement to costs.
I record that the amount of those costs, as sought, is professional fees of $1,022.50 and disbursements of $3,850.50, about a quarter of which represents court filing fees, the balance being counsel's fee and GST.
The letters are dated the 9th of January 2009, 20th of February 2009, 1st April 2009 and 15th April 2009. The second and the fourth indicate that if the application is brought, costs would be sought against the respondent/claimant - the others being silent as to costs. Ms Treston, for the applicant, is doubtless technically correct in asserting that the respondent's having acted through her father and (effectively) litigation guardian, as the Act contemplates for minors, until she attained her majority is strictly irrelevant. However, I would be loathe to saddle an 18 year old claimant with a costs order on the basis of inadequate performance by the father.
The Court is asked to accept that her solicitors had trouble making contact with the father and that this is the reason why responses weren't forthcoming.
The claimant's solicitors have not responded to all of the 2009 communications but on the 18th of June 2009, this application having been filed on the 5th and served, I think, on the 10th of June, there was an indication of willingness to agree to the holding of a compulsory conference on a suitable date to be nominated by the applicant. That was done on the basis of costs of the application being reserved, an unacceptable proposal so far as the applicant is concerned, which is why we're here involved in a contest.
It is accepted that the Court's ability to "make any other orders" referred to in section 36(5) extends to making of orders for costs and some reference has been made to Chenoweth v. AAPH Pty Ltd [2004} QDC 573.
The applicant's entitlement to "call the compulsory conference" in the circumstances is subject to "the relevant day" having passed. That term is defined in subsection (3). The relevant day has passed, the applicant having become entitled in February last year to call for the conference.
At the end of the day, I agree with Miss Wilson that the letters dispatched by the applicant's solicitors do not call for a conference.
The purpose being pursued, and for obvious reasons in the circumstances, is the obtaining of further medical evidence from the respondent/claimant which might establish that her claim is one entitled to be taken seriously.
The compulsory conference is one of the steps the Act wants to see either pursued or formally dispensed with. The use of section 36 as a means of getting the respondent/claimant to come up with more tenable evidence is understandable in the circumstances. It offers prospects of getting the claimant to withdraw or, alternatively, involving her in costly proceedings which would at least advance the whole matter towards a conclusion.
I'm inclined to agree with Miss Wilson that the applicant may have been influenced by some kind of misconception about the way in which the six month period in section 36 of the Act applies. The affidavit in support of the application says in paragraph 32, "Furthermore, given that the notice of claim was given in February 2007, the proceedings already fall well outside the six months' time period within which to hold the compulsory conference provided for by section 39 of PIPA."
Reference to the sections, in my view, supports Miss Wilson's contention that six months is, in fact, a period of enforced delay unless the parties have agreed to proceed to a conference more expeditiously. In my opinion, there's been no clear "call" or request for the holding of a compulsory conference.
What I propose to do about costs is reserve them. The respondent/claimant is in a difficult situation, it seems to me, in which, as things stand, her claim appears highly speculative and further pursuit of it may be seen as inappropriate, even mischievous; that's been the situation since December last year.
Speaking for myself, although the applicant is the State, with all of its resources, I think there's always a concern about the continued pursuit of claims that, putting it neutrally, appear more likely to fail than to succeed.
In Chenoweth, the boot was on the other foot, so to speak, so far as the roles played by the parties before me were concerned. I thought the applicant there was entitled to some costs but whether to all of the costs was appropriate to reserved for later consideration.
Here, the costs order will be paragraph 3 of the draft order, which I sign. It is in the following terms: the question whether the respondent should pay the applicant's standard costs of and incidental to the application is reserved, to be brought on on seven days' written notice.