G & S Engineering v Lampson Australia Pty Ltd [No 2]
[2009] QSC 451
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- Unreported Judgment
- G & S Engineering v Lampson Australia Pty Ltd [No 2][2009] QSC 451
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G & S Engineering v Lampson Australia Pty Ltd [No 2][2009] QSC 451
G & S Engineering v Lampson Australia Pty Ltd [No 2][2009] QSC 451
SUPREME COURT OF QUEENSLAND
CITATION: | G & S Engineering v Lampson Australia Pty Ltd & Anor (No 2) [2009] QSC 451 |
PARTIES: | G & S ENGINEERING (applicant) v LAMPSON AUSTRALIA PTY LTD (first respondent) and WESFARMERS CURRAGH PTY LTD (second respondent) |
FILE NO: | 4969 of 2009 |
DIVISION: | Trial Division |
PROCEEDING: | Application |
ORIGINATING COURT: | Supreme Court of Queensland |
DELIVERED ON: | 19 November 2009 |
DELIVERED AT: | Brisbane |
HEARING DATE: | Submissions in writing |
JUDGE: | Applegarth J |
ORDER: | The order for costs made on 12 November 2009 not include the costs reserved on 27 October 2009 |
CATCHWORDS: | PROCEDURE – COSTS – INTERLOCUTORY PROCEEDINGS – COSTS RESERVED – whether costs order occasioned by adjournment should include reserved costs Uniform Civil Procedure Rules 1999 (Qld), r 3, r 27, r 31, r 112, r 439 G & S Engineering v Lampson Australia Pty Ltd & Anor [2009] QSC 361, related |
G A Thompson SC for the applicant G E Underwood for the first respondent S Couper QC for the second respondent | |
SOLICITORS: | CLS Lawyers for the applicant Hewitt Commercial for the first respondent Carter Newell for the second respondent |
- [1]On 12 November 2009 I published my reasons and made certain orders in G & S Engineering v Lampson Australia Pty Ltd & Anor.[1] G & S and Curragh each seek an order that the costs to be paid by Lampson include costs reserved on Tuesday, 27 October 2009 when the application was adjourned. Lampson submits that the matter had to be adjourned because Mr Lunn was not able to attend in Brisbane to be cross-examined that day on short notice, and that I should exercise my discretion so that each party bears its own costs of the adjournment.
- [2]The application was filed on Wednesday, 21 October 2009. A copy of it was sent by email to Lampson’s solicitors at 4.16 pm (Brisbane time), noting that the matter had been listed on the first available date, namely Tuesday, 27 October 2009. Service by email was proper service.[2] The application and supporting material were also sent by express post delivery. Lampson’s submissions of 13 November 2009 contended that the material was only served on Thursday, 22 October 2009 in Toronto, New South Wales. However, there is no contest to G & S’ submission in response that the email attaching the relevant documents was sent on Wednesday, 21 October 2009. G & S and Curragh each submit that even if the material was not served until Thursday, 22 October 2009, sufficient time was allowed and there was compliance with UCPR 31, which requires an application within a proceeding to be served on a respondent at least two business days before the date set for the hearing of the application. The application was in the form an application made within proceeding BS 4969/09, but was not in substance an interlocutory application in that matter. Possibly it should have been by way of an Originating Application, in which event at least three business days before the date set for the hearing would have been required.[3]
- [3]In any event, Lampson does not contend that there was short service. Rule 439(3) provides:
“If an affidavit to be relied on at a hearing is served on a party less than 2 business days before the hearing, the person who made the affidavit must attend the court to be available for cross-examination unless the party otherwise agrees.”
- [4]Lampson was not able to serve the affidavit upon which it intended to rely so as to avoid the effect of this rule. Lampson relied in response to the application upon an affidavit of its Managing Director, Mr Lunn, who was the appropriate deponent to claim legal professional privilege. The affidavit of Mr Lunn dated 26 October 2009 was served by Lampson on G & S and Curragh at about 3.21 pm on Monday, 26 October 2009. At 5.05 pm (Brisbane time) on Monday, 26 October 2009 G & S’ solicitors notified Lampson’s solicitors that Mr Lunn would be required for cross-examination. G & S submits that this notice was unnecessary because of the operation of UCPR 439(3). Curragh points out in respect of UCPR 439(3) that “inevitably an application served in compliance with the rules will frequently lead to affidavits in response being served less than two business days before the hearing. The rules dictate that the deponents of those affidavits in response must attend the hearing for cross-examination unless their attendance is dispensed with by agreement of the other party”. However, the Court may receive an affidavit into evidence despite non-compliance with UCPR 439(3).[4] Further, the Court also has power to dispense with attendance for cross-examination under UCPR 439(5).
- [5]On Tuesday, 27 October 2009 Mr Lunn was in Gladstone on business and was not able to be present in Brisbane. When the matter came on for hearing an issue arose as to whether I would dispense with the need for him to attend to be cross-examined. I declined to do so on the basis of Lampson’s submission that cross-examination was potentially important to the resolution of the claim for legal professional privilege. I offered Counsel for Lampson the possibility of cross-examining Mr Lunn by telephone that afternoon, but he understandably did not wish to conduct such cross-examination by telephone.
- [6]An issue also arose on Tuesday, 27 October concerning the regularity of the application, and an issue of G & S’ standing to bring it. It was unnecessary for me to resolve that issue. However, at the adjourned hearing G & S obtained leave to amend its application, and the issue of standing was not pressed.
- [7]Lampson submits that in the circumstances it should not have to bear the burden of the costs of the adjournment by reason of the expedition with which the application was brought. It submits:
“The applicant is and was at the relevant time aware that the first respondent and its legal representative were located in NSW. The applicant submits that it should not have to bear the costs of the other parties for the adjourned hearing in circumstances where the exigencies of time worked to conspire against its compliance with he requirements under r 439 UCPR, especially in circumstances where there resided with the court a discretion to dispense with the requirements of cross-examination.”
- [8]There was some need for the matter to be brought on promptly. However, I do not consider that Lampson should be required to pay the cost occasioned by the adjournment. It was sent e-mail notice of the application after 5 pm (Eastern Daylight Saving Time) on the Wednesday. Mr Lunn’s affidavit was not of a formal kind. It was reasonable that its contents be properly considered and settled. It is unfortunate that the precaution was not taken of having Mr Lunn available for cross-examination the following Tuesday. Lampson ran the risk that an unfavourable exercise of the discretion under UCPR 439(4) would have resulted in it not being able to rely upon the affidavit. However, it also had an entitlement to ask the court to dispense with the attendance for cross-examination of Mr Lunn, and had some grounds to obtain such a dispensation.
- [9]Strict enforcement of UCPR 439(3) has the potential to generate unnecessary costs, contrary to the objective of UCPR 5, where a party resident interstate is served with an application in accordance with UCPR 31, but has less than two business days before the hearing to serve an affidavit in reply.
- [10]G & S provided limited time within which an affidavit from Mr Lunn could be prepared, settled, sworn and served so as to avoid the operation of UCPR 439(3). G & S acted promptly when served with the affidavit of Mr Lunn so as to require him to attend for cross examination, but that notice came too late to ensure his attendance in Brisbane on the morning of 27 October.
- [11]In all the circumstances, I do not consider that Lampson should be ordered to pay the costs that were reserved. The order for costs made on 12 November 2009 will not include the costs reserved on 27 October 2009. Each party should bear those costs.