Hoffmann v AAI Limited[2015] QDC 205

DISTRICT COURT OF QUEENSLAND

1. [1]
   An application in the proceedings was filed by the plaintiff on 17 July 2015. Pursuant to the application, the applicant sought an order that, pursuant to s 50(2) of the Motor Accident Insurance Act 1994 (Qld) (“MAIA”), the respondent co-operate by responding to the applicant’s request for information made pursuant to s 47(1)(b) of the MAIA and dated 3 June 2015, within 14 days, by way statutory declaration of the insured person.

2. [2]
   The applicant sought an order that the respondent pay the costs of and incidental to the application.

3. [3]
   On the morning of the hearing of the application, the respondent provided to the applicant a further statutory declaration, and it was accepted when the application came on for hearing before the Court that no order was required against the respondent for the provision of further information in terms of the MAIA. The sole question to be argued was one as to who should pay the costs of the application.

4. [4]
   In making submissions, counsel for the applicant/plaintiff relied on his written submissions dated 7 August 2015 and on the affidavits of Colin James Patino filed 29 July and 5 August 2015 respectively, together with a further affidavit of Mr Patino sworn 7 August 2015 and filed by leave. Mr Patino was the solicitor with the conduct of the matter on behalf of the applicant/plaintiff.

5. [5]
   Counsel for the respondent/defendant also provided written submissions and relied on the affidavit of Tracey Anne Ryan, being the claims advisor responsible for the management of the file on behalf of the respondent/defendant, sworn 6 August 2015. The affidavit of Ms Ryan was filed by leave, subject to the making of certain amendments as agreed between the applicant and the respondent.

6. [6]
   A reading of the affidavit material, and in particular the correspondence annexed thereto, raises some cause for concern in relation to the conduct of this matter by the plaintiff’s solicitors, and in particular, the necessity for this application to have been brought.

7. [7]
   The relevance of any assessment as to the conduct of the parties and their representatives arises because of the discretionary nature of any costs order. Rule 681(1) of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) provides: “Costs of a proceeding, including an application in a proceeding, are in the discretion of the court but follow the event, unless the court otherwise orders.”

8. [8]
   In considering the exercise of that discretion, the following facts are of particular significance.

9. [9]
   By the time this application was filed:

1. the applicant had already been provided with the investigative report of the accident and a statutory declaration, although that declaration failed to answer two of the 10 questions which the respondent had been asked to answer by the applicant;

2. the respondent had explained to the applicant, once the error had been realised by the respondent, the reason for the non-provision in the statutory declaration of answers to the two questions; and

3. upon realising the error, the respondent had notified the applicant that the investigator had been requested to obtain a further statutory declaration answering all questions and that would be provided as soon as it was received.

10. [10]
    In addition, the affidavit of Ms Ryan refers to correspondence exchanged between the parties in relation to the withdrawal of the application. It was not suggested that any of that correspondence was without prejudice. It is clear from that correspondence that as early as 23 July 2015 the respondent had requested of the plaintiff’s solicitors that the application be withdrawn or dismissed with no order as to costs. A response to that proposal was not made until 3 August 2015, and in it the applicant simply proposed orders by consent for the provision by the respondent of the statutory declaration within one month together with the payment by the respondent of the applicant’s costs of and incidental to the application. The respondent responded by letter dated 5 August, renewing its offer of 23 July 2015. By the time of this exchange, the respondent had provided to the applicant the insured driver’s answers to the questions and had advised the applicant that the signed statutory declaration would be forwarded once it had been received.

11. [11]
    Given the correspondence which had been received by the applicant from the respondent, together with the provision of an initial statutory declaration from the respondent, there can have been no doubt in the mind of the applicant that the respondent intended to provide the statutory declaration addressing all questions as soon as the same was received from the investigator. There was evidently no particular pressing urgency given that the applicant had proposed a consent order which required the delivery of the statutory declaration within one month.

12. [12]
    This was certainly not a case where it could be said the respondent was not cooperating and did not intend to comply fully with the request for information made by the applicant, as it was required to do under the MAIA. Nor was this a case where the respondent had failed to provide proper reasons to explain any failure to comply including any delay in compliance, including the delay occasioned by the error in failing to appreciate the number of questions which had been asked by the applicant in this claim.

13. [13]
    Taking into account all the circumstances, the orders of the Court are that:

1. There be no order as to costs of and incidental to the application up to 23 July 2015, being the date of the making of the first offer by the respondent to the applicant.

2. The applicant pay the respondent’s costs of and incidental to the application incurred after 23 July 2015, including the costs of preparation of the affidavit material filed in response to the application and the necessary court appearances.