Filep v AMP Capital Investors Ltd & Anor [2016] QDC 331

DISTRICT COURT OF QUEENSLAND CITATION: Filep v AMP Capital Investors Ltd & Anor [2016] QDC 331 PARTIES: ALEXSANDRA FILEP (applicant) v AMP CAPITAL INVESTORS LIMITED (first respondent) and AIRLITE CLEANING PTY LTD (second respondent) FILE NO/S: D111/16 DIVISION: Civil PROCEEDING: Originating Application ORIGINATING COURT: District Court at Southport DELIVERED ON: 16 December 2016 DELIVERED AT: Brisbane HEARING DATE: Hearing on the papers, with written submissions received to 7 December 2016 JUDGE: Rackemann DCJ ORDER: The solicitors for the applicant pay the respondents’ costs of the application to be assessed on the standard basis CATCHWORDS: CIVIL PROCEDURE – personal injuries costs – where application for relief under s 59(2) of the Personal Injuries Proceedings Act 2002 refused in circumstances where there was delay in bringing the application by reason, in part, of the negligence of the applicant’s solicitors – where applicant’s solicitors consented to an order for costs against them rather than against the applicant – whether costs ought be assessed on an indemnity basis COUNSEL: M.J. Smith for the applicant B.F. Charrington for the first respondent SOLICITORS: Parker Simmonds for the applicant Barry Nilsson Lawyers for the first respondent Carter Newell for the second respondent -- 1 of 3 -- 2 [1] On 25 November 2016 I published reasons for dismissing the application, pursuant to s 59(2) of the Personal Injuries Proceedings Act 2002 (PIPA), for leave to start a proceeding at a time which is outside the period of limitation. As observed in those reasons, there had been a substantial delay in bringing that application, the reason for which was not so much to do with conscientious endeavours to comply with pre- litigation steps, but rather related to a combination of confusion, ineptitude, lack of supervision, inattention and neglect on the part of the applicant’s solicitors, and a failure by the applicant either to cause her solicitors to perform or to replace them. [2] Upon publishing my reasons I indicated that the respondents should have the benefit of costs orders, but formally reserved the question of costs, in order for the parties to make submissions as to whether, in the circumstances, the costs orders ought be made against the solicitors for the applicant, rather than the applicant herself. The parties were content for me to determine the appropriate costs order on the papers, after receipt of written submissions. [3] The solicitors for the applicant are content for an order to be made requiring them to pay both respondents’ costs of the application, to be assessed on a standard basis. The respondents each ask that the costs be assessed on an indemnity basis. [4] It was submitted, for the first respondent, that costs should be assessed on an indemnity basis “given the unusual circumstances and unreasonable conduct” of the solicitors and, in particular, the excessive delay in bringing the subject application and “the failure to produce the necessary evidentiary material for her claim to have any prospects of success” notwithstanding two adjournments of the application. Similar submissions were made on behalf of the second respondent, which contends that the gross negligence of the applicant’s solicitors is a sufficiently unusual circumstance to warrant the award of costs on an indemnity basis. -- 2 of 3 -- 3 [5] The relevant history of the matter and, indeed, the course of the application for relief under s 59(2) of PIPA, are traversed in my earlier reasons. The negligence of the applicants solicitors to which reference has already been made, relates to the delay in bringing the application for relief. The application itself however, was an understandable and proper, albeit unduly delayed, attempt to recover the position of the applicant. There is no suggestion that the application for relief was an abuse of process or brought for any ulterior purpose. [6] The application for relief under s 59(2) of PIPA was brought on 4 May 2016. Material was not filed in support of the application until late July 2016. The first affidavit from the applicant was unhelpful, but was supplemented by a further affidavit from her. There was also an affidavit from the solicitor responsible for the matter. It is true that there remained gaps in the applicant’s material, which were not filled, notwithstanding a second adjournment to permit the applicant to obtain further material. The reason for the failure to obtain further material after that adjournment is not clear. It might have been that nothing further, of assistance to the applicant’s position, could be obtained. I am not prepared to infer neglect or unprofessional conduct on the part of the solicitor’s in that regard. [7] The material, in its ultimate form, did not make for a strong case for the exercise of discretion under s 59(2) of PIPA, but I do not consider that it was so weak as to conclude that the application was brought, or persisted with, in the face of no prospects of success. [8] On balance I am unpersuaded to make a costs order on an indemnity basis. The applicant’s solicitors will be ordered to pay the respondents costs of the application to be assessed on a standard basis. -- 3 of 3 --