Parker v Ford[2011] QDC 193

HIS HONOUR: This is Parker v Ford, 2903 of 2011. There are no appearances. The court has published to the parties yesterday reasons for its conclusions and invited submissions as to what are appropriate orders, including any order about costs which for the reasons intimated the Court was inclined to award the applicant claimant: [2011] QDC 163. Pursuant to the invitation, submissions have been submitted electronically by both sides and formal leave to read and file those will be granted.

The court makes an order in terms of the initialled draft supplied by Mr Rangiah SC for the applicant. It provides that the second respondent pay the applicant's costs of and incidental to the application to be assessed on the standard basis if not agreed.

Mr Williams' submissions opposed the making of any costs order against his client, essentially on the basis that the application was unnecessary, that in due course the applicant would have been provided with opportunities to undergo medical examinations belatedly required by the second respondent so that following relevant reports becoming available the compulsory conference which is holding up the commencement of a proceeding by the applicant could occur.

The order for costs is made on the basis of the court's view that for seven months or so, from the end of 2010, the second respondent was responsible for delay by ignoring requests by the applicant for advice as to whether he was required to submit to medical examinations. The obligation of the second respondent to cooperate is clearly set out in section 47 ofthe Motor Accident Insurance Act 1994 which imposes similar obligations on a claimant in section 45. Other indications in the Act that a cooperative approach is expected may be found in the objects section, section 3, which identifies one of the Act's objects as, "(e) to encourage the speedy resolution of personal injury claims resulting from motor vehicle accidents." An insurer is required by section 41 to attempt to resolve a claim, something which one would think would be promoted by a more speedy record than the second respondent established.

Once it responded to the request to advise whether it required medical examinations, it proposed a schedule which subsequent events show involved more delay than was necessary and also chopped and changed by deleting from the panel of medical people it proposed the doctor chosen by the applicant.

As to the availability of costs orders, it is not clear to me that section 47(4) applies, in that there doesn't seem to be any "request under this section" made on the plaintiff's behalf. However, I am of the view that in the absence of any general provision of the kind found in other legislation limiting a court's jurisdiction or power to order costs, jurisdiction or power to do so exists under section 50(3) which entitles the Court to make consequential or ancillary orders if either claimant or insurer fails to comply with a duty imposed under division 4, in particular. The second respondent has so failed. An instance of the court's making a costs order in circumstances of some similarity to the present is RACQ Insurance Limited v Wilkins [2010] 2 Queensland Reports 552.

It was not suggested the court was not entitled to order costs. An additional reason for doing so on this occasion is the second respondent's attempting to defeat the application by asserting that in the circumstances the District Court lacked jurisdiction. It was that issue which led to the court's having to reserve its decision.

Order as per initialled draft.