Stacey v Perkins (No 2)

[2015] QDC 117

DISTRICT COURT OF QUEENSLAND

CITATION:

Stacey v Perkins & Anor (No 2) [2015] QDC 117

PARTIES:

PAUL DOUGLAS STACEY

(plaintiff)

v

KERRY ANN PERKINS

(first defendant)

and

WILLIAM STEWART PERKINS

(second defendant)

FILE NO:

D3592/14

DIVISION:

Civil

PROCEEDING:

Claim

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

21 May 2015

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Dorney QC DCJ

ORDERS:

1.     It is ordered that the plaintiff pay the first defendant’s costs of the application filed 27 April 2015.

2.     No further order as to costs of that application is made.

CATCHWORDS:

Costs

LEGISLATION CITED:

Uniform Civil Procedure Rules 1999, r 681, r 684, r 692(2)

CASES CITED:

Stanley v Layne Christensen Co [2006] WASCA 56

COUNSEL:

M Williams for the Applicant/Plaintiff

G Shaw (Solicitor) for the First Respondent/Defendant

SOLICITORS:

Carter Capner Law for the Applicant/Plaintiff

Australian Law Group for the First Respondent/Defendant

Introduction

1. On 8 May 2015 I made orders in this proceeding. As part of those orders I gave leave to all parties to file, and serve, written submissions on costs, if any, by 4pm on 15 May 2015. Only the plaintiff and the first defendant have made such written submissions.

1. In the original reasons, I indicated, with respect to costs, that I had an intention, subject to being persuaded to the contrary, to order that the plaintiff pay the first defendant’s costs of the application, insofar as it affected the amendment to the Claim and Statement of Claim and in light of my decision on disclosure: at [24].

1. With respect to the second defendant, I indicated an intention to make no order as to costs, subject, again, to being convinced to the contrary: at [25]. As the second defendant has filed no submissions on costs, it is simply a matter of examining what the plaintiff seeks in deciding what merit, if any, his submissions have about her costs.

Costs rules

1. Clearly, the two rules in question are r 681 and r 684 of the Uniform Civil Procedure Rules 1999 (“UCPR”).

1. Rule 692(2) of the UCPR takes effect according to its terms, unless the Court orders otherwise. That remains applicable here because I do not intend to order otherwise.

1. Even so, what I am concerned about are the costs of the application in question which, as I have examined, was in two parts. It is the costs with respect to those parts that is the real issue here.

Application for amendment

1. It is acknowledged that, in special cases, the principles referred to in Stanley v Layne Christensen Co[1] are applicable. But, as observed there by Wheeler JA, the significant factor there was whether a party “acting reasonably” would have considered consenting to appropriate orders: at [52].

   [1] [2006] WASCA 56.

1. It may well be that if the amendment were, in fact, to have added “a substantial, different, but apparently arguable cause of action” (see Stanley at [55]), a different approach from that which I will adopt here could have been arguable. But, as I observed clearly in my original Reasons, there was a manifest inadequacy in the draft amended pleadings. That has an effect not only on the “arguable cause of action” but on the concept of a party “acting reasonably”.

1. The plaintiff, correctly, characterised the grant to him of leave for the amendment as an “indulgence”. That, together with the points that I have just canvassed, confirm my view that I reached in the expressed intention already referred to. The particular reason why the consent would not have been reasonable here was that no party should consent to a pleading that was so deficient.

1. Accordingly, I intend, as I have already indicated, to make orders with respect to the amendment that I have foreshadowed.

Disclosure

1. In dealing first with the first defendant’s position, the fact that disclosure was made by a list of documents provided after the application, in circumstances where the application was not brought back before me and where, on request, the particular documents sought were provided, does not change the circumstance concerning the offer to disclose and the premature application, in the circumstances, by the plaintiff (given the offer made by the first defendant about such disclosure).

1. As for the second defendant, there is no doubt that the second defendant’s conduct necessitated an application. Nevertheless, as I have already quite clearly stated, the setting off of the costs concerning the amendment against the costs concerning the disclosure justifies an order that no order be made as to costs between the plaintiff and the second defendant.

Orders

1. The orders that I intend to make are the ones that I indicated an intention to make.