Evans v TAL Life Limited [2015] QDC 128

DISTRICT COURT OF QUEENSLAND CITATION: Evans v TAL Life Limited [2015] QDC 128 PARTIES: ROY EVANS (applicant/plaintiff) v TAL LIFE LIMITED ABN 70 050 109 450 (respondent/defendant) FILE NO/S: 4603/13 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: District Court at Brisbane DELIVERED ON: 13 May 2015 ex tempore DELIVERED AT: Brisbane HEARING DATE: 13 May 2015 JUDGE: Samios DCJ ORDER: 1. Pursuant to rule 63 of the Uniform Civil Procedure Rules (the Rules), Lisa Faye Evans be joined as the Second Plaintiff to the proceedings. 2. Pursuant to rule 74 the Plaintiffs have leave to amend their Claim. 3. The Defendant is to pay the Plaintiffs’ costs of and incidental to the Application on the indemnity basis. CATCHWORDS: PRACTICE – JOINDER OF PARTIES – where the applicant/plaintiff seeks a declaration that the applicant/plaintiff is totally permanently disabled within the meaning of an insurance policy held between the applicant/plaintiff and the respondent/defendant – where the limitation period for commencing the action for recovery of damages has expired – where the applicant/plaintiff and the applicant/plaintiff’s wife jointly held the insurance policy – whether the applicant/plaintiff’s wife can be joined as the second applicant/plaintiff to the proceedings COSTS – CONDUCT OF PARTIES – INDEMNITY COSTS – where the respondent/defendant opposed the application to join the applicant/plaintiff’s wife to the proceedings – whether the respondent/defendant should be ordered to pay -- 1 of 9 -- 2 the costs of and incidental to the application on an indemnity basis Legislation Uniform Civil Procedure Rules 1999 (Qld) rr 63, 69 COUNSEL: Mr M Alexander for the applicant/plaintiff Ms B O’Brien respondent/defendant SOLICITORS: Maurice Blackburn Lawyers for the applicant/plaintiff Cooper Grace Ward for the respondent/defendant [1] HIS HONOUR: Roy Evans has commenced proceedings against TAL Life Limited seeking a declaration that he is totally and permanently disabled within the meaning of an insurance policy effected between him and TAL Life Limited. He also seeks an order that TAL Life Limited pay the total and permanent disablement benefit provided for by the insurance policy effected between him and TAL Life Limited. Further or in the alternative, he claims damages pursuant to general law. These proceedings have been served on the defendant and solicitors are acting for the defendant. At this stage, no notice of intention to defend and defence has been filed and served. The policy is in evidence before me. The front page schedule states that this life insurance policy has been issued to Mr Roy Evans and Ms Lisa Faye Powell. In addition, in condition 1 the definitions provide “You, your mean the policy owner”. Correspondence passing between the defendant and Mr Evans also includes Mrs Evans who I take it to have been Ms Powell when the policy was taken out. In addition, clause 7.6.1 of the policy provides: Payment of claims: unless we tell you otherwise in your policy, all benefits will be paid to you. [2] Mrs Evans applies to me today for orders joining her as a second plaintiff to the proceedings. Consequential relief is sought, that is, that there be leave to amend the -- 2 of 9 -- 3 claim and for service of the amended claim and statement of claim and other directions that would follow. The application to join Mrs Evans as the second plaintiff to these proceedings is opposed. I have given leave to the defendant to appear on the application today despite the defendant not having filed a notice of intention to defend and defence. It is difficult to understand how this application would be opposed. In effect, the submissions are that Mrs Evans does not come within the policy and it is unnecessary for her to be joined. The applicant relies on rule 69 whereby sub-rule 2 provides: However, the court must not include or substitute a party after the end of a limitation period unless 1 of the following applies–– And subparagraph (b) provides: the relevant cause of action is vested in the new party and the plaintiff or applicant jointly but not severally [3] It seems to me the weight of the evidence is that Mr and Mrs Evans are joint owners of this policy, although the limitation period has expired, that would not prevent Mrs Evans being joined because she comes within subparagraph 2, sub-subparagraph (b) of rule 69 of the UCPR. A submission was made that there are or that there is within the policy a provision that says the term life plus allows you to include up to 20 lives insured on the one policy and incur just one policy fee. Each life insured is treated separately in relation to the terms of the policy. While that may be so, that does not, in my opinion, detract from the weight of the evidence I have referred to which I conclude shows Mr and Mrs Evans are joint policy owners and that there, in this case, could be joint relief. [4] In addition, it seems that even the defendant’s solicitors thought that the joinder of Mrs Evans was not unnecessary. See the letter Cooper Grace Ward to Maurice -- 3 of 9 -- 4 Blackburn Lawyers 12 May 2015. I should also, for completeness, refer to rule 63 of the UCPR which provides in sub-rule 1: If a plaintiff or applicant seeks relief to which another person is entitled jointly with the plaintiff or applicant, all persons entitled to the relief must be parties to the proceeding. Further, sub-rule 2 provides: A person entitled to seek relief who does not agree to be a plaintiff or applicant must be made a defendant or respondent. [5] In any event, in my view on the evidence, Mrs Evans comes within rule 69 sub-rule 2 paragraph (b). I am satisfied this relevant cause of action is vested in her and her husband jointly. They ought both be plaintiffs to the proceeding. I cannot see any prejudice to the defendant that they be both joined as parties. There’s no additional cost or delay being incurred and no defence has yet been filed. The defendant has just not accepted that at this stage of the proceedings it is proper on the evidence for Mrs Evans to be joined. It avoids future disputation. Therefore, I am prepared to make orders in terms of the draft handed up to me by Mr Alexander - - - [6] MR ALEXANDER: Thank you. Your Honour, could I be heard on the issue of cost, please? [7] HIS HONOUR: Yes. [8] MR ALEXANDER: Thank you. Your Honour, could you take the big affidavit that was filed by Ms Allatt - - - [9] HIS HONOUR: Yes. -- 4 of 9 -- 5 [10] MR ALEXANDER: - - - and could you please turn to page 13. [11] HIS HONOUR: Yes. [12] MR ALEXANDER: That’s a letter from Cooper Grace Ward back on the 7th of May and there are other pieces of correspondence about this issue, but I’ll – I don’t wish to take up too much of your time. We’re told that – basically in this letter, we won’t even consider what you’re saying until it’s – we’re content with it, but in any event – look at the last paragraph: In any event, your client’s application has resulted in our client incurring costs unnecessarily. I pause to say probably so by them being charged by my opponents: Accordingly, we also require that in the order sought, you pay our costs. [13] Then could I ask your Honour, please, to turn to page 98 of that bundle and you’ll see – when your Honour arrives there - - - [14] HIS HONOUR: Yes. [15] MR ALEXANDER: We’re going to see costs against you on the indemnity basis now. Now, the bullying increases respectfully. Could your Honour then please turn to page 101 of that bundle. [16] HIS HONOUR: Yes. -- 5 of 9 -- 6 [17] MR ALEXANDER: Look, your Honour, on the 8th of May, we’re still writing to them trying to give them an explanation and you’ll see in the paragraph at the bottom that at that time we said costs could be in the cause. [18] HIS HONOUR: Yes. [19] MR ALEXANDER: Please can sense prevail and we not waste this money. Again, opposed. Last night after 5 o’clock, they serve us with that huge bundle of material that you’re provided this morning and then, additionally, they hand up another one this morning. They’re more than happy to spend their client’s money on swearing affidavits about the correspondence they write. 501, your Honour. I could have sought the application be adjourned, but perhaps unrecoverable costs would have saw it nugatory. The affidavit from Mr – from Ms Allatt this morning referring to my discussions where we just wanted to find out who their counsel was opposing that. I tell you those things, your Honour, because they’re relevant to the facts, matters and circumstances that arise in the cases such as Di Carlo v Dubois and Colgate- Palmolive. [20] This is a matter where you would order costs on the indemnity basis for these reasons. On the issue of being entirely unsuccessful, clearly the defendant here has been entirely unsuccessful. You can see that reasonable offers of compromise have been imprudently refused. I say imprudently refused because they write back and tell us they’ll seek indemnity costs against us and that even if they were to consent to it, we would have to pay their costs. Their service of material is appalling. For the top end -- 6 of 9 -- 7 of town to be serving us with 135-odd pages or more – I think it’s about 150 pages – at – after five when you can see from the evidence that the correspondence between the solicitors has been ongoing and, indeed, quite a lot of correspondence yesterday, to take until after five to service with the material is just entirely inappropriate. [21] This is – and can I say, your Honour, my client was still before incurring more expense, willing to resolve this – as I’ve taken you in the correspondence – with costs be in the cause again opposed. There is no sensible reason for the conduct that the defendant is – has adopted in this matter and, in my respectful submission, this is a matter, your Honour, where you’d be satisfied that costs ought to be ordered on the indemnity basis and I ask that you amend my draft order to include after application on the indemnity basis, please. [22] HIS HONOUR: Yes. All right. Yes, Ms O’Brien. [23] MS O’BRIEN: Yes, your Honour. It’s my submission that indemnity costs should not be ordered and it should be costs in the cause or at least costs reserved, your Honour. Firstly, your Honour, in relation to his submission on the affidavits, those affidavits actually contain correspondence that was already in the plaintiff’s possession well before these affidavits were served. Your Honour, in relation to the affidavits, the plaintiff itself served an affidavit on us this morning, it having only been filed yesterday afternoon. Your Honour, this is just argy-bargy that just isn’t relevant, but to say that the correspondence that is referred to in the affidavits filed by the defendant in his correspondence – it was already in the plaintiff’s possession and was merely exhibited to an affidavit to put the material before the court if that was -- 7 of 9 -- 8 considered necessary. One of those affidavits exhibits the insurance policy which is also exhibited to an affidavit Lucille Nell that was sworn yesterday afternoon served this morning, your Honour. [24] Your Honour, it’s my submission that indemnity costs are not appropriate here. The defendant was given no prior notice of this application and in circumstances which the court has decided to join Mrs Evans, a party that the plaintiffs knew about well before the institution of proceedings, then in those circumstances the only reason that this application is before the court is because the plaintiffs should not have added the party in the first place and in those circumstances, your Honour, I – in my submission, costs in the cause or costs reserved are appropriate. [25] HIS HONOUR: Yes. Anything else? [26] MS O’BRIEN: No. Nothing further, your Honour. [27] HIS HONOUR: With respect to the question of costs it seems to me that even if Mr Evans did not join his wife, or she had herself been joined in the first place is not to the point. It became apparent that Mr and Mrs Evans were seeking to have Mrs Evans joined as a party to proceedings. That intention, in my opinion, should not have been opposed. No good reason exists for the opposition to that course. The only thing that’s occurred is that there’s been costs unnecessarily incurred for both parties. Clearly, the offer made that costs be in the cause was imprudently refused. The correspondence coming from the defendant’s solicitors, to my mind, is not the sort of correspondence one would want the public to see. There is no alternative, in my view, -- 8 of 9 -- 9 than to make the order that costs be on the indemnity basis and paid by the defendant. So I’ll add the words on the indemnity basis to the end of your draft order - - - [28] MR ALEXANDER: Thank you, your Honour. [29] HIS HONOUR: - - - and there be an order as per the draft. [30] MR ALEXANDER: Thank you for that. [31] HIS HONOUR: Initialled by me and left with the papers. Yes. Thank you. No need to stay. [32] MS O’BRIEN: Thank you, your Honour. [33] HIS HONOUR: Yes. Thank you. Mr Alexander, there’s your amended claim. [34] MR ALEXANDER: Sorry. Thank you, your Honour. [35] HIS HONOUR: I’ll give that back to you. [36] MR ALEXANDER: Thank you. -- 9 of 9 --