Madsen v Pope
[2014] QDC 56
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- Unreported Judgment
- Madsen v Pope[2014] QDC 56
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Madsen v Pope[2014] QDC 56
Madsen v Pope[2014] QDC 56
DISTRICT COURT OF QUEENSLAND
CITATION: | Madsen v Pope & Anor (No 2) [2014] QDC 56 |
PARTIES: | SARA MADSEN (plaintiff) v DOUGLAS HAMILTON LOCKHART POPE (first defendant) and EVA ULRIKA KERR (second defendant) |
FILE NO/S: | BD2824/13 |
DIVISION: | Civil |
PROCEEDING: | Applications in a proceeding |
ORIGINATING COURT: | District Court at Brisbane |
DELIVERED ON: | 28 March 2014 |
DELIVERED AT: | Brisbane |
HEARING DATE: | On the papers |
JUDGE: | Dorney QC DCJ |
ORDERS AND DIRECTIONS: |
|
CATCHWORDS:
| Applications in a proceeding – orders as to costs – directions as to compliance with PIPA Uniform Civil Procedure Rules 1999, r 5, r 367, r 681, r 684 Personal Injuries Proceeding Act 2002, s 9(3A), s 12(3), s 36 Coco v Ord Minnett Ltd [2012] QSC 343 Madsen v Pope & Anor [2014] QDC 45 Michail v AAI Co Ltd (No 2) [2013] QDC 305 |
COUNSEL: | S Gray for the plaintiff A Ehlers for the first defendant L Willson for the second defendant |
SOLICITORS: | Hatzis Lawyers for the plaintiff Kerwin Solicitors for the first defendant Potts Lawyers for the second defendant |
Introduction
- [1]On 17 March 2014 I made orders in this proceeding that the applications filed by the first defendant and the second defendant, respectively, be dismissed. I also made orders concerning submissions as to the form of orders regarding leave to the plaintiff to amend both her Claim and Statement of Claim, leave to the defendants to replead consequential upon such amendments of the plaintiff, and staying the proceeding until the plaintiff complies with Personal Injuries Proceeding Act 2002 (“PIPA”). I also made orders for all parties to file and serve submissions on costs.
- [2]All parties have, in a timely way, complied with that order as to serving written submissions.
Further conduct of this proceeding
- [3]Both the plaintiff and the defendants (the latter in concert) have provided draft forms of orders that I should make concerning the future conduct of this proceeding. In general terms, I have chosen an amalgam of them. Accordingly, I will make orders and directions, generally, in that form.
Success?
- [4]In Coco v Ord Minnett Ltd [2012] QSC 343 Jackson J considered what costs should be ordered following an order directing the plaintiff to amend the Statement of Claim in question. That part of the proceeding concerned an application to strike out the Statement of Claim. Jackson J held that “the surgery required for the Statement of Claim is major” and that the applicant had had “substantial success” in the attacks that it made on the pleading: at [6]. As Jackson J noted, since the orders made did not include an order to strike out the Statement of Claim in its entirety, the court had a discretion as to the order to be made having regard to the purposes of the UCPR as reflected in r 5 and the scope of the court’s power to make directions under r 367: at [3].
- [5]What needs to be understood in this case though is that the primary argument of both defendants was that the whole of the claim should either be permanently stayed or set aside, it only being a subsidiary argument that, even if that should not be the outcome of the defendants’ applications, the Statement of Claim needed some significant changes to be effected to it.
- [6]As can be seen from the Reasons in Madsen v Pope & Anor [2014] QDC 45, there was a necessity for the Court to consider some factors of a somewhat complex nature concerning the plaintiff’s underlying cause of action. With respect to that question, both defendants lost “entirely”.
- [7]The success, though, of the defendants did extend beyond the need for the plaintiff to amend both her Claim and Statement of Claim. There was, additionally, the need for her to comply with the provisions of PIPA.
- [8]Accordingly, in terms of determination of success, as the orders show, the defendants did not succeed in their primary applications. Nevertheless, although the plaintiff had success on the primary issue, she contested the issue of compliance with PIPA vigorously and, perhaps less vigorously, the issue of the claiming of equitable “damages”. With respect to the latter, it was still necessary for me to analyse in the Reasons, albeit somewhat briefly, the background to such a claim.
Conclusions
- [9]Rule 681 of the UCPR requires costs, on an application in a proceeding, although in the discretion of the court, to follow the event, unless the court otherwise orders: see r. 681(1). Rule 684 is referable to separate questions and percentage costs. (See, for a discussion of recent cases, Michail v AAI Co Ltd (No 2) [2013] QDC 305 at [14]-[15].)
- [10]This is a case in which I intend to exercise the discretion to order otherwise.
- [11]As indicated above, no party on one side of the record or the other succeeded entirely; but as I also indicated, a substantial issue in the case was resolved in the plaintiff’s favour.
- [12]Thus, subject to orders to be made concerning costs thrown away by further amendments, I intend to order that the defendants pay 50% of the costs of the plaintiff of both applications (each defendant contributing 50% of such fixed percentage costs) to be assessed on the standard basis. Furthermore, with respect to the amendments to the Claim and Statement of Claim, noting that the second defendant has not yet filed a Defence, I intend to order that the plaintiff pay the costs of the first defendant and the costs of the second defendant which are necessitated by the plaintiff’s amendments, to be assessed on the standard basis. That particular form of order covers the question that I have just mentioned.
- [13]Otherwise, I will make orders as I have indicated above concerning further directions.