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[2002] QCA 416
Court of Appeal (Qld)
2002-10-11
Davies and Williams JJA and White JSeparate reasons, for further order of each member of the Court, each concurring as to the orders, made
Original judgment source is linked above.
Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: Gitsham, Edwards & Jensen v Suncorp Metway Insurance Ltd [2002] QCA 416
PARTIES: BERYL MAY GITSHAM (applicant/respondent) v SUNCORP METWAY INSURANCE LIMITED ACN 075 695 966 (respondent/applicant/appellant) / LORNA MAY EDWARDS (applicant/respondent) v SUNCORP METWAY INSURANCE LIMITED ACN 075 695 966 (respondent/applicant/appellant) / JENNIFER KATE JENSEN (applicant/respondent) v SUNCORP METWAY INSURANCE LIMITED ACN 075 695 966 (respondent/applicant/appellant)
FILE NO/S: Appeal No 3547 of 2002 / Appeal No 3548 of 2002 / Appeal No 3549 of 2002 / DC No 1001 of 2002 / DC No 909 of 2002 / DC No 908 of 2002
DIVISION: Court of Appeal
PROCEEDING: Application for leave s 118 DCA (Civil) – Further Order
ORIGINATING COURT: District Court at Brisbane
DELIVERED ON: Judgment delivered 23 August 2002 Further Order delivered 11 October 2002
DELIVERED AT: Brisbane
HEARING DATE: 26 July 2002
JUDGES: Davies and Williams JJA and White J Separate reasons for further order of each member of the Court, each concurring as to the orders made
FURTHER ORDER: In each application and appeal:
CATCHWORDS: PROCEDURE – COSTS – DEPARTING FROM GENERAL RULE – POWERS OF COURT – power to order solicitors to pay costs of proceedings / PROCEDURE – COSTS – DEPARTING FROM GENERAL RULE – OTHER CASES – UNCERTAINTY OF LAW – whether solicitor can reasonably be expected to comply with recent amendments to legislation – where legislation is clear and unambiguous – whether solicitors ought to pay costs of proceedings / PROCEDURE – COSTS – DEPARTING FROM GENERAL RULE – OTHER CASES – OTHER CASES – where solicitors fail to comply with legislation proscribing litigation procedure – whether solicitors ought to pay costs of application and/or appeal / INSURANCE – THIRD-PARTY LIABILITY INSURANCE – MOTOR VEHICLES – COMPULSORY INSURANCE LEGISLATION – GENERALLY – QUEENSLAND – where recent amendments to Motor Accidents Insurance Act 1994 (Qld) – where solicitors fail to comply with amendments resulting in further costs to both parties – whether solicitors ought to pay costs of application and/or appeal / PROFESSIONS AND TRADES – LAWYERS – DUTIES AND LIABILITIES – TO OTHERS PERSONS – LIABILITY FOR COSTS – where expense and delay caused by solicitors’ failure to comply with legislation proscribing litigation procedure – whether solicitors ought to pay costs of application and/or appeal / Motor Accidents Insurance Act 1994 (Qld), Part 4 Division 4 / Caboolture Park Shopping Centre Pty Ltd (in liq) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224, applied / Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225, considered / Deputy Commissioner of Taxation v Levick (1999) 168 ALR 383, considered / De Sousa v Minister for Immigration (1993) 41 FCR 544, considered / Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1998) 81 ALR 391, considered / Knight v F P Special Assets Ltd (1992) 174 CLR 178, applied / Money Tree Management Service Pty Ltd v Deputy Commissioner of Taxation (No. 3) [2000] SASC 286, considered
COUNSEL: W Sofronoff QC, with K F Holyoak, for the applicant/appellant / S J Given for the respondents
SOLICITORS: Suncorp Metway Insurance Limited for the applicant/appellant / Morton & Morton (Maryborough) for the respondents
DAVIES JA: I agree with the reasons for judgment of White J and with the orders she proposes.
WILLIAMS JA: I agree with the orders proposed by White J.
WHITE J: The Court delivered judgment in these appeals on 23 August 2002 and invited the solicitors for the respondents to lodge with the registrar within 14 days submissions in writing showing cause why they ought not be ordered to pay the costs of the applications and the appeals. The solicitors have done so. The appellant has responded with an application to have the costs to which it is clearly entitled as the successful appellant assessed on the indemnity basis and the solicitors have responded to that application.
There is no dispute that the court has jurisdiction to make an order that a person not a party to the proceedings pay costs, Knight v F P Special Assets Ltd (1992) 174 CLR 178. That power includes the power to make an order for costs against the solicitor representing a party, Caboolture Park Shopping Centre Pty Ltd (in liq) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224.
The solicitors submit that there is no conduct warranting an order against them personally because of the recency of the amendments to the Motor Accident Insurance Act 1994 with which the appeals were concerned and the lack of guidance as to how those amendments should be implemented. They further submitted that the conduct of the solicitors was not of the kind which attracts such liability.
The relevant amendments to the Act were assented to on 8 June 2000 and commenced variously on 1 July and 1 October 2000. There is nothing novel, ambiguous or difficult in Part 4 of the Act where these amendments are to be found. Timeframes established in that Part reflect one of the objects of the Act, namely, to bring about the speedy resolution of claims. However, there is nothing to suggest that this may be achieved at the sacrifice of adequate preparation. What the Act does is to state that early resolution will best be advanced by co-operation between a claimant and the insurer. Part 4 Division 4 contains the provisions with which the appeal was most concerned and spells out with clarity what that co-operation entails.
Certain of the correspondence emanating from the respondents’ solicitors to which detailed reference was made in the appeal judgment does not reflect an acknowledgement of this obligation. No explanation has been given as to why the information sought would not be provided to the insurer nor even an acknowledgment in the case of Mrs Edwards that she was content to proceed to a settlement conference although, in the opinion of her orthopaedic specialist, her injury had not stabilised; and in the case of Ms Jensen that she would forego further consideration of her ongoing unsettled symptoms to achieve an early settlement.
Gitsham, Edwards & Jensen
Suncorp Metway Insurance Ltd [2002] QCA 416
(1993) 45 FCR 224
(1993) 46 FCR 225
(1999) 168 ALR 383
(1993) 41 FCR 544
(1998) 81 ALR 391
(1992) 174 CLR 178
Cases in which the discretion to order costs against a party’s solicitors have been discussed emphasise the need for caution, De Sousa v Minister for Immigration (1993) 41 FCR 544; Deputy Commissioner of Taxation v Levick (1999) 168 ALR 383 per Hill J confirmed on appeal [2000] 44 ATR 315; and Money Tree Management Service Pty Ltd v Deputy Commissioner of Taxation (No. 3) [2000] SASC 286. The jurisdiction will not, without more, be exercised in favour of an order against a party’s solicitor merely because the case advanced had no substantial chance of success, Deputy Commissioner of Taxation v Levick per Hill J at [11]. In a case such as the present the court is particularly concerned to ensure that there is no abuse of process understood in a broad sense. An important object of the Act is to avoid the expense and delay inherent in litigating claims in the courts and a detailed regime is established which, if followed in good faith, will tend to that result.
The solicitors submit that they have done nothing but fairly prepare each claim and acted reasonably in facilitating the further progress of the claims by applying to have the obligation to hold the compulsory conference dispensed with when there were “late” requests for information. The analysis of the progress of the claims seen through the correspondence considered in the appeal cannot support this assertion. The claims do not appear to have been thoroughly or even adequately prepared in some aspects and the obligation of co-operation appears to have been given only a passing nod by the solicitors for the respondents. There is no suggestion that the respondents instructed that they wanted a quick settlement without proper preparation. The inference which the solicitors have been unable to resist is that the solicitors wanted turnover without the trouble of providing the information sought by the insurer pursuant to s 45 of the Act.
Accordingly the solicitors ought to pay the costs of the applications below in the District Court. There was nothing in the conduct of the appeal which would cause an order for the costs of that appeal to which the appellant is entitled to be made against the solicitors.
The appellant seeks its costs to be assessed on the indemnity basis. There is nothing special about the circumstances of these matters which would justify a departure from the ordinary principle that costs are to be paid on the standard basis, Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1985) 81 ALR 391; Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225.
The orders are: In each application and appeal:
the respondent pay the appellant’s costs of and incidental to the applications for leave and the appeal to be assessed on the standard basis;
the solicitors for the respondent pay the appellant’s costs of the hearings in the District Court to be assessed on the standard basis.