Brown v Buehler & Ors [1990] QSC 455

\ 10 20 30 40 50 60 $u IN THE SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION No. 20 of 1987 BEFORE MR. JUSTICE de JERSEY MOUNT ISA, 29 NOVEMBER 1990 BETWEEN: (Copyright in this transcript is vested inthe Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter,Court Reporting Bureau.) BARBARA ISOBEL BROWN -and- EGON ANDREAS BUEHLER, DORA URSULA SCHULTZ, Plaintiff RUDOLF KARL RADDATZ sued Defendants on their own behalf and on behalf of all other members of the CONCORDIA CLUB, Mt. Isa, in the State of Queensland ORDER HIS HONOUR: I order by consent that the defendant pay the plaintiff's costs of and incidental to the action to be taxed, including reserved costs and including the costs of two counsel on the basis that the total fee for senior counsel not exceed $7,000. //,t?/J. 7{4'.SS 10 20 30 40 HIS HONOUR: I have been asked to order that the plaintiff's costs which are to be paid by the defendant be taxed on a solicitor/client basis with reference to the issue of 50 liability only, however, and up to the date of trial. An Order 26 offer to settle was made on behalf of the plaintiff which envisaged a 90/10 apportionment of liability in favour of the plaintiff. That offer was made on 11 · -Govt. Printer, Old. l 60 -- 1 of 3 -- 10 20 30 40 50 60 October 1990. After the expiration of the term limited for its acceptance, it was accepted on 15 November 1990. Althoug 1 that offer has some relevance to what I should do, it did not strictly fall within the terms of Order 26 of the Rules of the Supreme Court because it was not an offer to settle one of the plaintiff's claims, it was an offer to settle an aspect of the plaintiff•s claim. The more striking aspect of the plaintiff's request for a solicitor and client taxing is the refusal of the defendant over a substantial period to admit allegations which should never seriously have been contested. The statement of claim delivered on 15 March 1988 made the necessary formal allegations, including that the plaintiff was employed by the defendant. The response a month later in the defence was a denial of all allegations. Further and better particulars were sought and ordered and the plaintiff delivered interrogatories of substantial length covering many matters, including those formal type issues. An amended defence was delivered in May 1989 which added a plea of contributory negligence but the formal matters remained in issue unnecessarily as illustrated now by the settlement which has been reached. I think that there would be a basis, in the exercise of my discretion, for ordering solicitor and client. costs in a failure on the part of the defendant to admit at an early stage allegations of a formal nature which should have been admitted, thereby easing the plaintiff's course. From what I have been told, the absence of that relatively important admission from an early stage has caused difficulties for the plaintiff and I am prepared to use the mechanism of the !er, Old. 2 10 20 30 40 50 60 -- 2 of 3 -- 10 20 30 40 50 60 solicitor and client taxing to encourage a more co-operative attitude on the part of a defendant to litigation of this character where the true issues only should absorb the time of the parties and the court. I will therefore order that between 14 April 1988, when the initial defence was delivered, and May 1989, when the amended defence was 10 delivered, the plaintiff's costs to be paid by the defendants be taxed on a solicitor and client basis as to the issue of liability only. The only further order I make, by consent, is to adjourn the action to the settlement list. -~·?"I Printer, Qld. 3 20 30 40 50 60 -- 3 of 3 --