Chapman v State of Queensland [2001] QSC 419

4001.1 ' . ' State Reporting Bureau (~ Queensland Government ~ Department oi justice ;no Atiorocy~fl<ral Transcript of Proceedings Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Diredor, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION WILSON J No 5680 of 1999 NOREEN MARY CHAPMAN and THE STATE OF QUEENSLAND BRISBANE .. DATE 29/10/2001 ' ORDER h Floor, The Law Courts, George Street, Brisbane, Q. 4000 1 REVISED COPIES ISSUED State yeporting Burnau Date ~ / I( lo / Plaintiff Defendant Telephone: (07) 3247 4360 Fax: (07) 3247 5532 -- 1 of 5 -- 29102001 T07/LZG14 M/T 1/2001 (Wilson J) HER HONOUR: This matter came on for trial before me last Thursday. At the time the plaintiff was unrepresented. The trial commenced, but after a short time I ordered that it be adjourned to allow her to seek legal representation and suggested that she contact the Bar Association of Queensland in relation to its pro bono scheme. Today I was informed that solicitors had been retained, namely Messrs Irish, Hughes and Bentley, and that counsel, Mr Rodney Lawson and Miss Tracey McMillan, would be available to represent her. I understand that it is a usual retainer. The solicitors now representing the plaintiff have sought an adjournment of the trial. They have put before me material to support their submissions that they need further expert evidence and that the pleadings will need amendment. They have also applied for the matter to be remitted to the District Court with directions for its future conduct. It is appropriate that the trial be adjourned, and I so order. Further, having regard to the instructions which the solicitors have received from the plaintiff, I will remit it to the District Court. It would be inappropriate for me to give directions about the conduct of the proceeding once it 1 10 2 30 40 is in the District Court. If the parties cannot agree on · 50 directions, then they should apply to a District Court Judge for directions. That leaves the question of costs. Firstly, there are the costs of this application for an adjournment and the costs 2 60 -- 2 of 5 -- 29102001 T07/LZG14 M/T 1/2001 (Wilson J) thrown away by the adjournment, including the costs that I reserved on 25 October. The defendant seeks an order for such costs and further asks that they be assessed on the indemnity basis. The plaintiff's solicitor submitted that the question of an adjournment could have been resolved by consent and accordingly he asked for an order for costs in his client's favour. Given that the trial commenced last Thursday, and given that I indicated I intended to proceed with it tomorrow, I think it was necessary to make an application for an adjournment, whatever the attitude of the defendant to that application. The plaintiff sought and obtained an indulgence from the Court. As is usual where an indulgence is sought, the party seeking it should bear the costs. 1 10 20 30 That brings me to the question of the scale on which those 40 costs ought to be assessed. Although applications for indemnity costs are frequently made, orders for such costs are rarely made. Usually there needs to be some misconduct in the litigation to justify the making of such an order. The defendant's counsel submitted that through no fault on 50 the part of his client the solicitor and client component of his client's costs had been lost and would never be recovered. There is force in that submission. However, the view I take is that the plaintiff's conduct is explicable by her ignorance of legal procedures and her lack of legal 3 ORDER 60 -- 3 of 5 -- 29102001 T07/LZG14 M/T 1/2001 (Wilson J) representation. I think it would be unjust to order indemnity costs in the circumstances and I intend ordering that the costs be assessed on the standard basis. However, those costs should not be assessed until the conclusion of the litigation by judgment at trial level or by settlement. There is one other issue of costs and that is the question of the costs up to the remitter to the District Court, whichever side wins. On what scale should those costs be assessed? Pursuant to Rule 686 of the Uniform Civil Procedure Rules, in the absence of an order by this Court, the District Court could order them to be assessed only on the District Court scale. In the circumstances I am going to expressly reserve to the Supreme Court the question of the scale on which the costs of the proceeding up to the remitter should ultimately be assessed. Therefore the orders I make are these: (1) That the trial be adjourned; (2) That the proceeding be remitted to the District Court; (3) That the plaintiff pay the defendant's costs of and l 10 2 30 incidental to this application and the costs thrown 50 away by the adjournment, including the costs reserved on 25 October 2001; those costs to be on the standard basis on the Supreme Court scale and not to be assessed until the conclusion of the litigation by judgment at trial level or by settlement, and 4 ORDER 60 -- 4 of 5 -- 29102001 T07/LZG14 M/T 1/2001 (Wilson J) l (4) I expressly reserve to the Supreme Court the question of the scale on which the costs of the proceeding up to the remitter should ultimately be assessed. 5 ORDER 10 20 30 40 50 60 -- 5 of 5 --