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Naidoo v Queensland; Naidoo v The Sunshine Coast Hospital and Health Services (No 2)[2015] QDC 86

Naidoo v Queensland; Naidoo v The Sunshine Coast Hospital and Health Services (No 2)[2015] QDC 86

DISTRICT COURT OF QUEENSLAND

CITATION:

Naidoo v State of Queensland & Anor and Naidoo v The Sunshine Coast Hospital and Health Services & Anor (No.2) [2015] QDC 86

PARTIES:

DR NAVIN NAIDOO

(plaintiff)

v

STATE OF QUEENSLAND

(first defendant)

and

DR PREETY GEORGE

(second defendant)

and

DR NAVIN NAIDOO

(plaintiff)

v

THE SUNSHINE COAST HOSPITAL AND HEALTH SERVICE

(first defendant)

and

DR TERRENCE HANELT

(second defendant)

FILE NO/S:

D4/13 and D5/13

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Gympie

DELIVERED EX TEMPORE ON:

17 April 2015

DELIVERED AT:

District Court at Maroochydore

HEARING DATE:

17 April 2015

JUDGE:

Long SC, DCJ

ORDER:

The further orders are that:

  1. (1)
    In respect of matter D4/13, the plaintiff is to pay the defendants’ costs of the application fixed in the amount of $3600;  and
  2. (2)
    In respect of matter D5/13, the plaintiff is to pay the defendants’ costs of the application fixed in the amount of $3600.

CATCHWORDS:

COSTS: Whether the Court should fix a lump sum for the costs that are payable, pursuant to UCPR 687 – Consideration as to fixing an appropriate sum, in circumstances where the plaintiff had not accepted a reasonable offer of the defendants, as to such a sum, and the additional costs of bringing the issue to the court for determination might have been avoided.

Uniform Civil Procedure Rules 1999 r 681 and 687

Goodwin v O'Driscoll [2008] QCA 43

Nine Films & Television Pty  Limited v Ninox Television Limited (2006) FCA 1046

COUNSEL:

No legal representation for the plaintiff

A.Newell solicitor, for the first and second defendants, in each matter

SOLICITORS:

No legal representation for the plaintiff

Corrs Chambers Westgarth for the first and second defendants, in each matter 

HIS HONOUR:   On the 1st of April 2015, I gave judgment dismissing each of the plaintiff’s applications for review of the cost assessments and cost certificates, made and filed respectively, in matters D4/13 and D5/13. At that time the issue of any further order as to the costs of those applications was adjourned to today. That was to allow the parties to correspond and negotiate that issue, both generally and more specifically as to the prospect of an order pursuant to UCPR 687 and as to an agreed fixed sum.

That has not occurred and, as the material put before the Court by the defendants demonstrates, that is notwithstanding the communication to the plaintiff, by email and post on 2nd and again 10 April 2015. In the earlier correspondence, the defendants’ made an offer to accept the sum of $6000 in full and final satisfaction of the plaintiff’s liability to pay the defendants’ costs of both applications and left that offer open for a period of seven days. Then and on 10 April 2015, a further email was sent pointing out the absence of response and seeking the same on an urgent basis. There was no response and the defendants prepared the materials which were filed on 15 April 2015 and read this morning, on this application.

There is no sufficient reason for departure from the usual position under UCPR 681 that the costs of these applications should follow the event. However and given that any such further order will be in respect of disputes relating to the assessments of costs in relation to earlier orders made against the plaintiff and his position as a self-represented litigant and generally the desirability of bringing the issue to an early conclusion, it is appropriate to consider an exercise of discretion to fix a lump sum for the costs that are payable. It is particularly appropriate to do that to avoid the additional costs of further assessment and any potential dispute in that regard.

In doing that, it may be noted that the Court of Appeal observed in Goodwin v O'Driscoll [2008] QCA 43, that “fixing costs is intended as a summary determination of what is fair and reasonable for costs in the circumstances. It is not intended to mimic an assessment of costs”. Further, and in Nine Films & Television Pty  Limited v Ninox Television Limited (2006) FCA 1046 at [8], Tamberlin J observed:

“In fixing a lump sum, the exercise is one of estimation or assessment and not of arithmetic calculation or precision. As pointed out in Harrison v Schipp (2002) NSWCA 213; (2002) 54 NSWLR 738 at [22], the rule contemplates the application of a much broader brush than that applied on taxation. The approach must be logical, fair and reasonable and should only be exercised when the Court considers that it can do so fairly as between the parties:  see Jacobson J’s discussion in Sony Entertainment (Australia) Limited v Smith(2005) 215 ALR 788 at [198] - [199].”

Notwithstanding that under UCPR 687 a costs assessment is the primary position. For the reasons that have been identified, it is appropriate, in the present circumstances, to fix the sum of costs to be paid by the unsuccessful applicant. The defendants seek that and have appropriately set out an itemised estimate of their

entitlements. Responsibly, that has incorporated the suggestion made by the Court that the extent of overlap between the separate written outlines prepared for the two applications might reasonably allow for costs in respect of one, in total and this rationale was further and again responsibly, applied to the separate affidavits filed on 15 April 2015.

In those circumstances, the itemised claims of the defendants would total $9829.25, not including any allowance for the appearance today. However, those claims would ordinarily be subject to assessment, including a determination pursuant to UCPR 702(2) as to whether in each instance they were necessary or proper for the obtainment of justice or for defending the defendants’ rights.

In this context and having regard to the summary or broad nature of the determination that is required and notwithstanding that it was not accepted by the plaintiff within the period allowed for acceptance, the defendants’ offer is a relevant consideration. But the fact that the plaintiff’s disinclination to accept that offer has meant that further cost has been incurred since the offer was made and which may have been avoided if the offer had instead been accepted, also needs to be taken into account. Further, it can be observed that from a perusal of the defendants’ claims, in the present context, that offer appears to be a reasonable one from the perspective of both sides.

Accordingly, I will proceed upon the basis of that offer representing a reasonable assessment of a lump sum to be ordered but add an amount for the additional costs that have been since incurred and may have been avoided by acceptance of it. That includes allowance for the email of 13 April 2015 and the costs of preparing and filing and serving the affidavits filed on 15 April 2015. By my calculation that is claimed at a total of $1051.76. That is a reasonable allowance, particularly, as I have noted, because the claim for the affidavits is effectively for one rather than two affidavits. It would be appropriate to round that figure up to $1200 to make allowance for today’s appearance and accordingly allow a total amount of $7200.

In respect of the orders, that sum will need to be divided between the two applications, and it is both convenient and appropriate to simply make an equal division. Therefore, the further orders are that:

  1. (1)
    In respect of matter D4/13 the plaintiff is to pay the defendants’ costs of the application fixed in the amount of $3600;  and
  1. (2)
    In respect of matter D5/13 the plaintiff is to pay the defendants’ costs of the application fixed in the amount of $3600.

Is there anything further arising out of that, Dr Naidoo?

PLAINTIFF:   No, your Honour.

HIS HONOUR:   Mr Newell?

MR NEWELL:   No, your Honour.

HIS HONOUR:   All right. Thank you.

Close

Editorial Notes

  • Published Case Name:

    Navin Naidoo v State of Queensland and Preety George; Navin Naidoo v The Sunshine Coast Hospital and Health Services and Terrence Hanelt (No 2)

  • Shortened Case Name:

    Naidoo v Queensland; Naidoo v The Sunshine Coast Hospital and Health Services (No 2)

  • MNC:

    [2015] QDC 86

  • Court:

    QDC

  • Judge(s):

    Long DCJ

  • Date:

    17 Apr 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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