Arthur & Anor v State of Queensland & Anor [2001] QSC 328

1 [2001] QSC 328 SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION DOUGLAS J No 7180 of 2001 AMANDA MAREE ARTHUR by her next friend LIONEL DOUGLAS ARTHUR Respondent/Plaintiff and STATE OF QUEENSLAND Applicant/First Defendant and ALLAN SALTAU Applicant/Second Defendant BRISBANE ..DATE 10/08/2001 ORDER -- 1 of 7 -- 2 HIS HONOUR: This is an application by the defendants in the original action, and the Public Trustee of Queensland, to transfer the assessment of the bill of costs as between party and party, and as between solicitor and own client from the Toowoomba Registry of this Court to the Brisbane Registry. Essentially it is based on three separate bases: 1. Cost and convenience; 2. Economy; and 3. The efficient conduct of the assessment. It is submitted that for those reasons Brisbane is the most appropriate venue for the taxation. The assessment is estimated to take at least six weeks. The action was one for damages for personal injuries involving an infant who received, after mediation, some $2 million, plus assessed costs of the proceedings on the ordinary basis. The settlement was sanctioned on 15 March 2001, and a very large bill of costs has been delivered by the plaintiff's litigation guardian's solicitors to the applicants. It is proposed that at the assessment the parties would be represented by solicitors or counsel based in Brisbane for the defendants, Ms Katherine Philp from Flower & Hart, Mr Robinson of counsel for the Public Trustee, and -- 2 of 7 -- 3 10082001 D.1 Turn 1 tvs (Douglas DCJ) ORDER Mr Sarinas, a solicitor from the Brisbane office of Shine Roche McGowan. It is urged that if the costs are assessed in the Toowoomba District Registry, those attending will either have to stay in Toowoomba all week for the purpose of the taxation, or spend three to four hours per day each travelling from Brisbane to Toowoomba and return. It is said that given the likely length of the assessment, there will be a significant decrease in efficiency for the parties involved, and devolution of costs of an assessment if it is conducted in Brisbane. The assessment is one which is known as an assessment in the nine column format which embodies both the plaintiff's costs against the defendants, and her solicitors account for costs as against her on a solicitor and own client basis. Evidence was directed to the fact that one Houghton conducts these taxations in Brisbane and he as Senior Deputy Registrar (Costs) has occupied that position since 1991. He is certainly a very experienced assessor of costs in difficult litigation. Mr Ivan Anthony Garrett, who is a very experienced solicitor in this area, swears that that is so. The Registrar in the Toowoomba District Registry is, I presume, not as experienced as Mr Houghton in these matters. However, he does have the powers to assess costs equally with Mr Houghton. Reliance was made on Argicoal Australia Incorporated & Others v. United Plantations (Australia) Pty Ltd -- 3 of 7 -- 4 10082001 D.1 Turn 1 tvs (Douglas DCJ) ORDER (unreported; Demack J 6 December 1999) Rockhampton. At page 4 of the judgment his Honour said: "When the question is of taxation of bills of costs, the administrative arrangements within the Court are of far more significance than they would be in determining where an action should be tried." In that case his Honour did decide that the taxation should be transferred to Brisbane, but by reference to pages 9 and 10 the factors which his Honour considered significant can be summarised as follows: (a) The proceedings were essentially conducted in Brisbane; (b) The case was heard with witnesses and counsel and solicitors in Brisbane; (c) There had been an appeal to the Court of Appeal for which the costs had been taxed in Brisbane, in respect of which his Honour said at page 6: "There is, therefore, a substantial connection of this matter with the Brisbane Registry." (d) The administrative arrangements for the lengthy hearing of the taxation were more readily made in Brisbane. There is in fact no prior connection with the Brisbane Registry in respect of this matter. In this case the following points are relevant, as is submitted by the plaintiff: (a) The action has always been conducted in Toowoomba. -- 4 of 7 -- 5 10082001 D.1 Turn 1 tvs (Douglas DCJ) ORDER (b) There is no evidence before the Court that the length of this assessment would be unduly disruptive of the Toowoomba Registry. (c) The approach that would be taken by both the Toowoomba Registry and Brisbane Registry is identical. (d) The defendants had originally instructed Toowoomba solicitors. (e) The application to transfer the venue is simply for the convenience of the legal representatives for the defendants and the Public Trustee. (f) The solicitor for the plaintiff will be inconvenienced and incur continuing overdraft expenses and delay of payment of their professional costs until the costs issue has been resolved; and (g) Dates can be allocated much earlier in the Toowoomba Registry. The evidence reveals that the Toowoomba Registry could not hear the taxation in one block of six or so weeks, but that it would be broken up over a period of months commencing from 7 September 2001. The situation in Brisbane is very similar. Such an assessment could not be set down in a six or seven week block, but in two or three week blocks, and the earliest date for commencement would be November 2001. -- 5 of 7 -- 6 10082001 D.1 Turn 1 tvs (Douglas DCJ) ORDER As I said, the bill for assessment was served on the Public Trustee on 21 June and on the defendant on 22 June. It is admittedly large. Bearing in mind the fact that the action was one which was settled, I would have thought that before this application was made, some attempt would have been made by the defendants and the Public Trustee to make their own judgment as to the proper amount in their view to be paid, and an offer be made accordingly; hoping to avoid an assessment on a formal basis if at all. I would have thought this application would only have been made after such an offer had been rejected by the plaintiff. If such offer had been made and accepted, then the necessity for this application, if it was ever necessary, could have been avoided. In my view, it is not a proper reason to transfer the assessment of these costs to Brisbane pursuant to rule 95(10)(3) of the UCPR for what appears to be, to me, what is essentially a preference for the Registrar in Brisbane, whom the defendants say is, and I accept, more adept at taxing these bills. The rules are not designed to provide that only that Registrar assess costs in difficult actions. I therefore dismiss the applications. ... HIS HONOUR: I further order the Public Trustee file and -- 6 of 7 -- 7 10082001 D.1 Turn 1 tvs (Douglas DCJ) ORDER serve objections to the costs statement within 14 days from today. ... HIS HONOUR: I order that the defendants and the Public Trustee pay the plaintiff's costs of and incidental to this application to be assessed on the ordinary basis. ----- -- 7 of 7 --