Baker v Dale & Suncorp General Insurance Ltd [2001] QSC 274

State Reporting Bureau SC O l : ;;2_74 ~~_Q_u_e_en_s_l_a_nd_G_ov_e_r_nm_e_nt ,~,~ Department of Justice and Attorney-General 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 Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION JONES J Application No 70 of 2001 MARGARET JOYCE BAKER and IAN FRANK DALE and SUNCORP GENERAL INSURANCE LIMITED CAIRNS .. DATE 09/07/2001 JUDGMENT . ' . : ) ,, ' Applicant First Respondent Second Respondent /J;~ - Ul) 4TII Flom, TIie Lavv Ooml:s Oo,upleX, OeOIQe Ob eel, DJisba11e Q~ 4000. TelepliUiie. tD?) 324? 4300. Facsi,iiile. tO?) :.k. -- 1 of 3 -- 09072001 T9/CH M/T CNSl/2001 (Jones J) HIS HONOUR: This is an application on behalf of the plaintiff to remove a matter which originated in the District Court at Mount Isa into the Supreme Court and to transfer the action to Cairns. The application also seeks an order that the respondent, namely the second defendant, pay the applicant's costs of and incidental to the application. As to the principal relief sought, there is no contest. In 10 fact, the parties are prepared to consent that the matter be transferred to the Supreme Court and that the action be transferred to Cairns. On behalf of the defendant, it is alleged that the matter should have been commenced in the Supreme Court in the first instance given the amount claimed as disclosed in the plaintiff's loss and damage statement. The issue between the parties now is one of costs of this application. The parties agree that the costs incurred in the District Court should be subject to the usual order, that they 20 be costs in the cause. However, in relation to the costs of the application, there are competing issues. The plaintiff brought this application without prior notice to the defendant that it intended to do so. In terms of the application, it sought an order for costs. Once the application and supporting documents were served on the defendant, the defendant acknowledged its preparedness to consent to the orders but opposed the applicant's order for costs. At that time the defendant, Suncorp General Insurance 30 Limited, was acting for itself. That state of affairs existed 2 JUDGMENT -- 2 of 3 -- 09072001 T9/CH M/T CNSl/2001 (Jones J) right through until Friday of last week, three days before the hearing, when finally there was agreement that there be no opposition to the application sought. Prior to that, it was a case of the defendant saying it would neither consent nor oppose. Also on that date, the second defendant engaged lawyers to come to Court simply to oppose this question of costs of the 10 application. At that time the plaintiff indicated it did not intend to seek costs of the application. So we have a situation where the parties have been virtually fighting over nothing and it is compounded by a failure on the part of the second defendant to indicate in a timely way that it would consent, rather than saying it would neither consent nor oppose. It is compounded by the plaintiff's action of not indicating in a timely way that it would not seek orders for the application. In those circumstances of a significant lack 20 of co-operation stemming from both sides, my order will be that there is no order as to costs of the application. My orders will be that pursuant to section 82 of the District Court Act 1997, District Court action number PDlO of 2000, Mount Isa Registry, be transferred to the Supreme Court at Cairns. The costs incurred in the District Court action will be costs in the cause. There will be no order for costs in respect of the application for remission to the Supreme Court or its transfer to Cairns. 3 JUDGMENT 30 -- 3 of 3 --