Collison v Metro North Hospital and Health Service [2020] QDC 311

DISTRICT COURT OF QUEENSLAND CITATION: Collison v Metro North Hospital and Health Service [2020] QDC 311 PARTIES: In 2417 of 2020: JONATHON RAY COLLISON (applicant) v METRO NORTH HOSPITAL AND HEALTH SERVICE (respondent) In 2418 of 2020: RACHEL ANNE COLLISON (applicant) v METRO NORTH HOSPITAL AND HEALTH SERVICE (respondent) FILE NO/S: 2417 of 2020 2418 of 2020 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: District Court, Brisbane DELIVERED ON: 30 September 2020, ex tempore DELIVERED AT: Brisbane HEARING DATE: 29 and 30 September 2020 JUDGE: Rackemann DCJ ORDER: In 2417 of 2020: Orders as per amended draft In 2418 of 2020: Orders as per amended draft CATCHWORDS: COSTS – APPLICATION FOR COSTS – where the applicants each sought relief under s 43 of the Personal Injuries Proceedings Act 2002 (Qld) – where the substantive relief sought was uncontroversial – where the respondent seeks its costs of the applications – where the applicants contend that there be no orders made as to costs up to and including the hearing of the application on 29 September 2020 but that the respondent pay the applicants’ costs of and incidental to the hearing on 30 September 2020 which was substantially about costs – where the parties had previously been corresponding about a potential consent order granting -- 1 of 4 -- 2 the substantive relief with no order as to costs – where the respondent informed the applicants on the evening prior to the return date for the applications that it held instructions to seek costs – where the respondent contends that its change of attitude in relation to costs was due to the fact that the applications were not able to be dealt with on the papers – where the applications could not be heard on the return date due to the late notice given by the respondent that it was seeking costs and the late service of material by the respondent – where a further appearance was required by counsel for the applicants to consider the respondent’s costs application – where the costs orders sought by the applicants should be made LEGISLATION: Personal Injuries Proceedings Act 2002 (Qld) ss 43, 44, 59 COUNSEL: CW Chiang for the applicants A Lebbink (sol) for the respondent SOLICITORS: Everingham Lawyers for the applicants Corrs Chambers Westgarth for the respondent [1] This is an application ultimately for relief under section 43 of the Personal Injuries Proceedings Act 2002. The application in each matter commenced as an application for relief under section 59. However, as a result of the respondent subsequently giving notice that the claim was non-compliant, the applicant has sought to amend its application to seek relief instead under section 43. The substantive relief sought between the parties is not controversial, and the material satisfies me that substantive relief should be granted. The contest between the parties relates to costs. [2] The respondent seeks its costs of the application. The applicant proposes that there be no costs up to and including the hearing of the application yesterday, but that the respondent pay its costs of and incidental to today. The hearing today was substantively about the costs issue. That could not be heard yesterday because of the respondent’s late notice that it was seeking costs and late service of material in support of that application. [3] There has, in truth, never been any real dispute between the parties as to the substantive relief, which the applicant sought. One of the bases upon which the respondent seeks its costs is that, instead of making an application, the applicant could have sought to reach agreement under section 44 of the Act. That does not, of course, disentitle the applicant from seeking relief under section 43, and there appears to be little, in terms of consequences for the respondent, between negotiating an agreement under section 44 of the Act and simply giving consent, particularly if no Court appearance is required, to an application brought pursuant to section 43. [4] It was said that the applicant ought to have awaited the respondent’s notice prior to commencing proceedings as it did under section 59(2), but again, there seems to be relatively little consequence of that insofar as the costs of the respondent is concerned. The application is simply amended to be one under section 43. Indeed, when the -- 2 of 4 -- 3 course of amending the application and proceeding to consent orders was raised, it was something that was embraced by the respondent. In particular, in an email from the respondent’s solicitor of the 14th of September, the applicant was advised that the respondent was agreeable to disposing of the matter by way of consent orders, granting the substantive relief and including an order that there be no order as to costs. [5] There was communication the following day, by way of a telephone conversation between the solicitors for the parties, in which the solicitor for the applicant indicated that the amended application would be “pretty much” on the terms that the respondent had indicated save for one aspect relating to service of the claimant’s statement of claim when it was ultimately filed, but he indicated that if that was a real sticking point, that it could be accommodated in the consent orders. Following that, the matter proceeded without much incident towards what was looking like an uncontested determination. The applicant’s amended originating application was filed on the 18 th of September. [6] On the 21st of September, the Registrar refused to make an order amending the originating application. Accordingly, that would need to be done by a subsequent order. On the 24 th of September, the applicant’s solicitors sent through to the respondent’s solicitors proposed consent orders for their consideration and execution. The next morning, the respondent’s solicitor queried the omission of one of the orders which had been previously sought by the respondent. That was immediately attended to by the solicitors for the applicant, who sent back amended consent orders, including that paragraph, such that the proposed consent order mirrored the orders which had earlier been requested by the respondent. The solicitors for the respondent then sought the orders to be provided in a different form, and the draft orders were also provided in that form later the same day. The orders included that there be no order as to costs, which is consistent with what the respondent had earlier proposed. No issue was taken with that at the time. [7] On the afternoon before the return date of the applications and in response to an enquiry by my Associate as to whether the matter was proceeding and would be contested, the solicitor for the respondent sent an email to my Associate with a copy to the solicitor for the applicant, which advised that the respondent did not oppose the amendment to the application in relation to the relief being sought under section 43 rather than section 59. The solicitor also advised that the parties had, in principle, reached agreement as to draft consent orders, but that the respondent’s solicitor was awaiting confirmation of instructions to agree to those orders. The email also advised that the solicitor anticipated that the application would likely not be contested and could be dealt with on the papers. It indicated that if an appearance was required, that they would like to appear by telephone. [8] When the matter got beyond 4.30 pm, the parties were advised that the list could not be changed and that the matter would be listed before the Court, and if they wished to, they could appear by telephone. It should be noted that there was no requirement for the respondent’s solicitor to appear personally. The solicitor could have appeared by way of telephone. Further, there was no need even for that appearance, since the solicitors for the applicant had offered to act as the unpaid agent for the respondent if the respondent so wished. It was not until well into the evening of the night before the return date that the respondent’s solicitor advised the applicant’s lawyers that they held instructions to seek costs. -- 3 of 4 -- 4 [9] The reason for the change of attitude was said to be that the previous agreement that there be no order as to costs was on the basis that the applications could be dealt with on the papers. The material does not bear out that there was any such express condition. Further, as I have observed, there was no requirement at the end of the day for the respondent to have solicitors appear. The applicant had provided orders for execution, which could have been provided to the Court in advance of the return date, which the respondent had not authorised their solicitors to execute, notwithstanding that they were in terms which coincided with what the respondent itself had earlier suggested. [10] The solicitor for the respondent sought to criticise the applicant for not submitting those orders earlier, but it is difficult to see why that should be seen to be critical in circumstances where the contents of the draft orders were simply reflective of what the respondent had, in fact, asked for and in circumstances where the lateness in time was not a matter of complaint in the material before me. Further, as I have observed, an appearance even by telephone could have been avoided by the respondent simply authorising the applicant’s solicitors to appear as their unpaid agent. It is difficult to see the justification for the late change of attitude in relation to costs. The email went on to claim that the solicitor’s appearance at the hearings was required by the applicant’s solicitor’s mismanagement of the issues. As I have already explained, the need for an appearance could have been avoided by the solicitor for the respondent. [11] There was some attempt, in oral submissions by the solicitor for the respondent, to assert that it was necessary for her to appear once the application to the Registrar to amend the application had been refused, since it was unknown why that had been refused, and she needed to be able to protect her client’s interests. It is difficult to accept that submission. It would seem to be at odds with the communications which she had with the Court late on the day before the application when she was suggesting that the matter could be dealt with on the papers. There is nothing in the affidavit material or the correspondence which suggests that that was the basis upon which she needed to appear. [12] It seems to me that in the circumstances the proper order as to costs in this matter would ordinarily have been no order as to costs. However, the respondent’s late change of attitude together with the service of documents in support of that position late meant that the costs could not be determined on the day the application was returnable and a further appearance was required simply to consider the respondent’s costs application. The respondent not having been successful in the application, it seems to me that the costs orders sought by the applicant should be made. -- 4 of 4 --