Chiropractic Board of Australia v Jamieson (No 2) [2013] QSC 111

SUPREME COURT OF QUEENSLAND CITATION: Chiropractic Board of Australia v Jamieson (No 2) [2013] QSC 111 PARTIES: CHIROPRACTIC BOARD OF AUSTRLIA (applicant) v JOHN WILLIAM JAMIESON (respondent) FILE NO/S: CA 4593 of 2010 DIVISION: Trial PROCEEDING: Application DELIVERED ON: 30 April 2013 DELIVERED AT: Brisbane HEARING DATE: On the papers JUDGE: Jackson J ORDER: It is ordered that the respondent may not recover the costs of the assessment but must pay the costs of the assessment of the applicant. CATCHWORDS: PROCEDURE – COSTS – GENERAL RULE - COSTS FOLLOW THE EVENT – COSTS OF WHOLE ACTION – WHERE MONEY PAID INTO COURT OR OFFER OF COMPROMISE MADE – OFFER OF COMPROMISE MADE – where the assessed costs are less than the offer to settle – whether respondent can recover the costs of the costs assessment or must pay the costs of the applicant Civil Proceedings Act 2011 (Qld), s 58(3), s 59 Supreme Court of Queensland Act 1995 (Qld), s 47 Uniform Civil Procedure Rules 1999 (Qld), r 733, r 734(4), r 740(1), r 742(6) Chiropractic Board of Australia v Jamieson [2013] QSC 77 Flower & Hart v White Industries (Qld) Pty Ltd [2001] FCA 370; (2001) 109 FCR 280 Minister Administering the Environmental Planning & Assessment Act v Carson (1994) 35 NSWLR 342 COUNSEL: No counsel SOLICITORS: Rodgers, Barnes & Green for the applicant The respondent on his own behalf -- 1 of 3 -- 2 [1] JACKSON J: By an order made on 26 March 2013, the parties were given leave to make written submissions not longer than one page in length as to the costs of the costs assessment, following the order made on the review of the costs assessor’s certificate reducing the amount of that certificate by $5,000. [2] Chiropractic Board of Australia (“CBOA”) applies for an order that the respondent (“Jamieson”) pay the costs of the assessment in accordance with UCPR 734(4). [3] That rule provides that if the amount of the costs assessed by the costs assessor, before deciding the assessment, is less than the amount of a relevant offer to settle costs made under UCPR 733, then the party entitled to the costs may not recover the costs of the assessment but must pay the costs of the assessment of the party liable to pay the costs, unless the cost assessor decides otherwise. That power is a power of the costs assessor in relation to the assessment that the court may exercise on the review: UCPR 742(6). [4] By my reasons for judgment given on the review of the costs assessor’s certificate of costs, the amount at which I assessed the respondent’s costs was $7,537.20. [5] On 28 October 2011 CBOA made an offer to settle the costs under UCPR 733 in the amount of $8,000.1 Thus the amount of the costs assessed on the review is less than the amount of the offer. [6] By the order made on 26 March 2013, the decision of the costs assessor was set aside or varied by reducing it by the amount of $5,000. The amount of $5,000 was an item claimed in Jamieson’s costs statement for “Donnelly Lawyers Client Agreement”. CBOA originally objected to that amount on the basis that insufficient details were provided. As discussed in my reasons delivered on 26 March 2013, it subsequently transpired that Jamieson had not paid the amount of $5,000 to Donnelly Lawyers and was not liable to pay it to Donnelly Lawyers.2 [7] Jamieson seeks to repel the application of UCPR 734(4), which amounts to seeking that a decision be made “otherwise” under that sub-rule in the exercise of that power on review under UCPR 742(6), relying on four points. First, he contends that the offer to settle was made after the assessment of the costs statement had begun, because it was made after the first costs assessor was appointed. However, there was no suggestion that Jamieson was liable for the first costs assessor’s fees or that they are otherwise included in the relevant amount of the second costs assessor’s costs. [8] Secondly, he contends that he was caused to pay “thousands more dollars in fees” in relation to the first costs assessor. Whether or not that be so, and there is no evidence that it is, it seems to be beside the point. It is not suggested that the failure of the first costs assessor to complete the assessment was due to CBOA’s fault in any way. [9] Thirdly, he contends that he incurred expenses in dealing with the second costs assessor and chose not to challenge the second costs assessor’s certificate although he contends that the second costs assessor erred in disallowing a number of items. Again, these contentions seem to be beside the point. The absence of a challenge 1 Ex RWB-2 to the affidavit of RW Barnes sworn 28 March 2013. 2 See Chiropractic Board of Australia v Jamieson [2013] QSC 77 at [20]. -- 2 of 3 -- 3 does not advance Jamieson’s position. In any event, there is no basis in the evidence on which I could determine that Jamieson was wrongly disallowed items for costs or disbursement. [10] Lastly, he relies on the period of the delay between when the costs were incurred and the determination of the review of the second costs assessor’s certificate and contends that “accrued” interest would exceed the amount of the difference between the amount in the certificate of assessment and the amount as reduced by the order of 26 March 2013. Again that seems to be beside the point. There is nothing in the UCPR to make a party responsible for any amount of pre-certificate of assessment interest. Rather, UCPR 740(1) appears to have the effect that a certificate of assessment, once filed, takes effect as a judgment of the court, which would carry post-judgment interest under s 59 of the Civil Proceedings Act 2011 (Qld). [11] The power to award costs is based in statute and the power to award pre-judgment interest is also found in statute. It is questionable whether there is power to make a pre-certificate of assessment award of interest.3 [12] Further, Jamieson did not apply for an award of interest on the amount of the costs from the date of the order for costs before the costs assessor. [13] However, even if the assessment of costs had carried interest from the date of the Court of Appeal’s order on 29 March 2011 to the date of CBOA’s successful offer to settle, which was made on 28 October 2011, the amount would have been less than $450 calculated as simple interest at 10% to that date. Thus, if Jamieson had accepted the successful offer to settle of $8000 he would still have been as well off or better off as if interest had been payable on the amount of the recoverable costs and disbursements from the date of the order for costs. [14] That is enough to dispose of this point. Further, there is nothing in the evidence to lay blame for the delay in the assessment of costs thereafter at CBOA’s door. [15] Accordingly, in my view, none of the matters raised by Jamieson is a sufficient reason to decide otherwise than that Jamieson may not recover the costs of the assessment but must pay the costs of the assessment of CBOA. 3 Minister Administering the Environmental Planning & Assessment Act v Carson (1994) 35 NSWLR 342; cf Flower & Hart v White Industries (Qld) Pty Ltd [2001] FCA 370; (2001) 109 FCR 280 at 294; s 58(3) of the Civil Proceedings Act 2011 (Qld) and it predecessor, s 47 of the Supreme Court of Queensland Act 1995 (Qld). -- 3 of 3 --