Bust v Woolworths Ltd [2014] QDC 283

DISTRICT COURT OF QUEENSLAND CITATION: Bust v Woolworths limited [2014] QDC 283 PARTIES: Gwenneth Maree Bust (Plaintiff) V Woolworths Limited (Defendant) FILE NO/S: 303 of 2013 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: District Court at Townsville DELIVERED ON: 02 December 2014 DELIVERED AT: Townsville HEARING DATE: 24 November 2014 JUDGE: Durward SC DCJ ORDERS: 1 The defendant to pay to the plaintiff her costs of the applications on the standard basis. CATCHWORDS: COSTS – INTERLOCUTORY APPLICATION – DELAY- where plaintiff successful in her application to dispense with defendant’s signature on request for trial date – where defendant unsuccessful in application to change trial venue - whether defendant responsible for delay – whether delay unreasonable – what is fair and reasonable in the circumstances. COUNSEL: SOLICITORS: Ms V Keegan for the plaintiff Ms xx Venus for the defendant Macrossan & Amiet Solicitors for the plaintiff DLA Piper Lawyers for the defendant [1] On 24 November 2014, I heard and determined two applications. -- 1 of 3 -- 2 [2] I granted the Plaintiff’s application for an order dispensing with the signature of the Defendant on the request for trial date; and I refused the Defendant’s application for a transfer of the proceeding to the District Court at Mackay. The latter application also sought leave to adduce evidence from an expert witness. The parties had agreed on that part of the application. It was not argued before me on the hearing of the application and I will simply make an order reflecting that agreement. [3] I reserved consideration of the matter of costs, and this judgment deals with that matter. Submissions [4] Ms Keegan, for the Plaintiff, submitted that unreasonable delay had been caused by the defendant, and that the court’s discretion to award costs was therefore enlivened. Ms Venus, for the Defendant, denied that there had been any unreasonable delay and submitted that there should be no order as to costs. Discussion [5] Costs in an interlocutory proceeding are at the discretion of the court. The discretion is not fettered in any way. It is exercised on the simple basis of what is fair and reasonable in the circumstances. [6] The Plaintiff filed the claim and statement of claim in the Townsville registry on 4 October 2013. The Defence was filed on 7 November 2013 and an Amended Defence was filed on the 24th of September 2014. The Plaintiff filed a reply on 16 October 2014. [7] The Plaintiff sent a request for trial date for a trial in the District Court at Townsville to the Defendant on several occasions: in May, August, September 2014, the latter date being subject to a rule 444 Uniform Civil Procedure Rules letter, and in October2014, the latter date being subject to another rule 444 Uniform Civil Procedure Rules letter. [8] The Defendant did not sign the request for trial date, citing several reasons on each occasion. The Plaintiff filed the subject application for dispensing with the signature of the Defendant on the request for trial date on 3 November 2014. [9] There has prima facie been a delay by the Defendant in signing the request for trial date. The question is whether that delay was unreasonable on its part in all of the circumstances. The principal explanations, amongst others, for the delay appears to be two-fold: the Defendant or it’s counsel was unable to have the -- 2 of 3 -- 3 trial in Townsville heard in the balance of 2014, and subsequently that also applied to any trial in Mackay for the balance of 2014; and the Defendant did not consider that Townsville was the appropriate venue for trial. [10] The Defendant on September 2014 wrote to the Plaintiff’s lawyers saying: “Unfortunately, we are not available for a trial on any of the remaining dates at the Townsville District Court this year.” The Defendant’s submissions in support of the transfer of the trial to the District Court at Mackay, which cited a number of matters including inconvenience for witnesses, costs, and the necessity to transport a large trolley as an exhibit, is undermined by the defendant’s earlier suggestion in the course of discussions with the Plaintiff’s lawyers, that the trial be transferred to Brisbane. While that alternative venue was not pursued in its application in this court, nevertheless it is inconsistent with the submissions made in support of a transfer of the trial to Mackay. Conclusion [11] In my view neither explanation provided by the Defendant is reasonable. A civil sittings in Townsville, in the time that has passed whilst communication between the parties was continuing, has come and gone. The Defendant’s insistence on seeking a transfer of the trial from a central registry – which Townsville is and where there are two resident judges – contrary to the wishes of the Plaintiff, has in my view caused the delay. The delay is such that I consider it to be unreasonable. A bare statement of non-availability for a trial in 2014 was also unreasonable. [12] The Plaintiff was successful in its application and successful in resisting the one live issue in the Defendant’s application (the second issue having been resolved without my intervention). The Defendant caused a delay that, in all the circumstances, was unreasonable. It is therefore fair and just that the plaintiff should have her cost of the applications. Resolution [13] I therefore order that the Defendant pay to the Plaintiff her costs of the applications. When the transcript of those reasons is prepared and perfected, I will advise the parties that they are available for collection by or for transmission to them. ORDERS 1 The defendant to pay to the plaintiff her costs of the applications on the standard basis. -- 3 of 3 --