Ratnapala v McLaren[2014] QDC 164

DISTRICT COURT OF QUEENSLAND

1. [1]
   HIS HONOUR:   This is an application by which the Plaintiff seeks orders that, pursuant to section 36, subsection 5, paragraph (a) of the Personal Injuries Proceedings Act 2002,^[1] the parties participate in a compulsory conference, to be held at the offices of Shine Lawyers at 10 am on Tuesday, 12 August 2014, or any other date that the Court directs. In addition, the Plaintiff seeks an order that the Defendant pay the Plaintiff’s costs of the application. At the commencement of the hearing of the application, both parties told me that there is no dispute that I should make orders in terms of paragraphs 1 and 2 of a draft order, that is, that I should order, firstly, pursuant to section 36, subsection 5, paragraph (a) of the Personal Injuries Proceedings Act 2002,^[2] the parties participate in a compulsory conference, to be held at the offices of Shine Lawyers at 10 am on Friday, 15 August 2014 and, secondly, that the Applicant Plaintiff provide a schedule of damages, no later than 4 July 2014.

2. [2]
   The dispute has come down to whether either party should pay the costs of this application. I accept that I have jurisdiction to make an order for costs. In that regard, I adopt the judgments of his Honour Judge Robin QC in State of Queensland v Gallagher [2009] QDC 248 and Chenoweth v AAPH Pty Ltd [2004] QDC 573. That is, as his Honour did, I accept I can “make any other orders” under section 36, subsection 5 of the Personal Injuries Proceedings Act 2002.^[3]  The primary claim is a claim for damages against the Defendant. It is alleged the Defendant breached her duty of care to the Plaintiff, who suffered injuries at or following the birth of her child on 1 June 2010. There has been considerable correspondence passing between the parties, the effect of which has basically been that the Plaintiff’s solicitors have been seeking to establish a date for a compulsory conference. However, as the correspondence shows, the parties have been seeking medical opinion and dates that have been suggested have had to have been postponed to other dates. In addition, the Defendant’s solicitors have sought a schedule of damages.

3. [3]
   I have considered the material before me and the outlines of submissions. To my mind, the position between the parties, reached after this application was filed on 12 June 2014, can be seen in the letter from K&L Gates to Shine Lawyers, dated 19 June 2014. This is exhibit W to the affidavit of William Matthew King, filed 25 June 2014. The application had been filed and received by K&L Gates on 16 June 2014. It was to come on for hearing on 27 June 2014. Mr Watt claimed, he being the author of the letter, that K&L Gates did not consider the matter ready for compulsory conference until the Plaintiff had provided sufficient details of the quantum of the claim for damages. Shine Lawyers had claimed that there had been sufficient information provided.

4. [4]
   However, that was not agreed to by Mr Watt. He noted that the Plaintiff’s part 2 notice of claim indicated that she was not in a position to provide an offer of settlement because her injuries had not yet been assessed and the medical evidence which had been gathered, and in particular the reports of Dr Cauder and Dr Allen were contradictory, in terms of the prognosis of the Plaintiff’s condition. He referred to the Shine Lawyers correspondence of 8 April 2014, indicating that Shine Lawyers would provide the Plaintiff’s pre-Court statement of loss and damage by 15 May 2014. Then, in the correspondence of 13 May 2014 from Shine Lawyers, Shine Lawyers indicated that the Plaintiff would provide her pre-Court statement of loss and damage by 2 June 2014. Mr Watt asserts that no such document was delivered. He states in Shine Lawyers’ correspondence of 30 May 2014, Shine Lawyers indicated that, in fact, the Plaintiff had no obligation to provide a schedule of damages at that time, and it was Shine Lawyers’ intention to serve such a document at least six weeks prior to the date for compulsory conference. Mr Watt made a request for information, which included particulars of damages. He also invited the Plaintiff to make an offer of settlement. Then Mr Watt said, regarding the compulsory conference and the application that had been filed on 12 June 2014, that a representative from K&L Gates was not available to attend the conference on 12 August 2014. He states, in an effort to progress the matter:

We are willing to agree to schedule a compulsory conference at your offices on 10 am on Friday 15 August 2014, on the basis that your client’s application be dealt with on the papers, with no order made as to costs and, if your client fails to provide the above requested particulars of the quantum of her claim for damages by close of business on Friday 4 July 2014, the compulsory conference will need to be postponed on 15 August 2014 and rescheduled to a later date.

5. [5]
   Mr Watt then goes on to say:

If your client will not agree to the above proposal, we are instructed to defend your client’s application and seek our client’s costs.

6. [6]
   He sought a response. No response was received and he wrote again on the 24^th of June 2014, seeking a response. The response from Shine Lawyers is dated 24 June 2014, three days ago. Shine Lawyers confirm agreement to the compulsory conference at their office at 10 am on Friday 15 August 2014 and that the Plaintiff would provide a schedule of damages no later than 4 July 2014.

7. [7]
   However, regarding the question of costs, there was no agreement about no order being made as to costs. Shine Lawyers asserted that there had been numerous proposals for this matter to be set down for a compulsory conference. Further, they say, they consider their client’s application became necessary, as a result of the Defendant’s delay and the Defendant should, therefore, pay the costs of the application. Therefore, given the outstanding issue regarding costs, Shine Lawyers state they do not consider it appropriate for their client’s application to be considered on the papers and they reserved the right to bring this letter to the attention of the Court. In the interest of saving costs, Shine Lawyers say, they enclose a request for consent order and proposed order and:

…request you indicate whether your client is prepared to consent to the orders proposed as a matter of urgency, in which even they can be executed and lodged with the Registry for referral to a Registrar.

8. [8]
   The proposed order contains an order:

The Respondent pay the Applicant’s costs of the application.

9. [9]
   That, in the end, is what this dispute is about, as I have said earlier. In the end, having considered the material before me and the submissions, as I’ve said, I have come to the view that Shine Lawyers, at all stages, sought to link the compulsory conference to their provision, on behalf of their client, of a schedule of damages.

10. [10]
    To my mind, K&L Gates acted reasonably in seeking the schedule of damages and that it not be linked to the compulsory conference. That K&L Gates, on behalf of the Defendant, were prepared to link the compulsory conference to the provision of the damages schedule does not, to my mind, detract from the reasonableness of the approach taken by K&L Gates in their letter to Shine Lawyers, dated 19 June 2014, being exhibit W in Mr King’s affidavit that I referred to earlier. While it may be commendable for Shine Lawyers to seek to expedite a claim, I do not accept that it is necessarily an answer to say that the compulsory conference will be held at a period no earlier than six weeks before the schedule of damages is provided.
11. [11]
    I consider there is merit in the argument advanced by Mr Schneidewin here today, based on the authority of Gitsham v Suncorp Metway Insurance Limited [2003] 2 Qd R 251. That is that the Respondent is entitled to have the information that it seeks and then to determine whether it is prepared to go to a compulsory conference. It may be that the Respondent, in this case, could have sought an order under section 22 of the Act^[4] for that information to be provided, that is, the schedule of damages to be provided. However, again, I do not accept that is an answer to the position adopted by Shine Lawyers in this case.

12. [12]
    Therefore, I have come to the view, in the end, that there should be an order as per paragraphs 1 and 2 of the draft order that I have before me and I order the Applicant pay the Respondent’s costs of the application, to be assessed on the standard basis. With that amendment that I’ve made to paragraph 3 of the draft order then, there’ll be an order as per the draft, initialled by me and left with the papers. Yes. Thank you. No need to wait.

13. [13]
    MR SCHNEIDEWIN:   Thank you, your Honour.

14. [14]
    MR HARRIS:   Thank you, your Honour.