DISTRICT COURT OF QUEENSLAND
CITATION:
Eyles v Sydney Skydivers Pty Ltd [2022] QDC 25
PARTIES:
EYLES, James Richard
(Plaintiff)
v
Sydney Skydivers Pty Ltd ACN 002 690 235
(Defendant)
FILE NO: BD 1/2019
DIVISION:
Civil
PROCEEDING:
Application Hearing
ORIGINATING COURT:
District Court at Bowen
DELIVERED ON:
19 January 2022
DELIVERED AT:
Brisbane
HEARING DATE:
25 June 2021
JUDGE:
Devereaux SC CJDC
ORDER:
1. The Defendant is precluded by s.32(2) of the Personal Injuries Proceedings Act 2002 from using the document identified as item 26 of the List of Documents served on 19 February 2019 at any trial of the claim;
2. Subject to order 1, pursuant to s.32(2) of Personal Injuries Proceedings Act 2002, the Defendant may rely on any documents referenced in the List of Documents served on 19 February 2019 and the parachuting contract disclosed on 25 March 2019 at any trial of the claim;
3. The Plaintiff’s application and Defendant’s application be otherwise dismissed; and
4. Costs of the application be costs in the proceeding.
CATCHWORDS:
PROCEDURE –CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – FILING DOCUMENTS AND ACCESS THERETO – where the plaintiff applied for an order pursuant to s 32(2) of the Personal Injuries Proceedings Act 2002 (Qld) that the defendant be precluded from using certain documents at any trial of the claim – where the defendant applied for an order that it may rely on the contested documents – whether the defendant was obliged to disclose the documents pursuant to s 27(1)(a) of the Personal Injuries Proceedings Act 2002 (Qld).
COUNSEL:
P. T. Cullinane QC for the plaintiff
S.J. Deaves for the defendant
SOLICITORS:
Macrossan & Amiet Solicitors, Mackay for the plaintiff
Lander & Rogers for the defendant
Introduction
The Plaintiff brought an application seeking an order that the Defendant be precluded from using any of the documents listed in its List of Documents delivered on 19 February 2019 at any trial of the claim. The Defendant, in turn, brought an application seeking to confirm its ability to use certain documents at trial notwithstanding any breach of s.27(1)(a) of the Personal Injuries Proceedings Act 2002 (“PIPA”).
By a judgment delivered on 19 January 2022, the Plaintiff succeeded in relation to only one of the documents the subject of his application.
The parties are in agreement that the orders that ought to be made are as follows:-
1. The Defendant is precluded by s.32(2) of the Personal Injuries Proceedings Act 2002 from using the document identified as item 26 of the List of Documents served on 19 February 2019 at any trial of the claim;
2. Subject to order 1, pursuant to s.32(2) of Personal Injuries Proceedings Act 2002, the Defendant may rely on any documents referenced in the List of Documents served on 19 February 2019 and the parachuting contract disclosed on 25 March 2019 at any trial of the claim; and
3. The Plaintiff’s application and Defendant’s application be otherwise dismissed.
The only issue on which the parties differ is the proper order for costs. The Plaintiff seeks his costs.
The Defendant submits that, in the circumstances, the appropriate order is that the Plaintiff pay a proportion of the Defendant’s costs of the application. Or alternatively, that there ought to be no order as to costs.
I accept the formulation of the plaintiff’s counsel that while there were two interlocutory applications before the court, they both pertained to a discrete issue, namely whether or not the Defendant could rely on certain materials at any trial of the claim.
In support of an order that the defendant pay the plaintiff’s costs, the plaintiff submits, first, that he was successful on the application with respect to document 26 and, while he was unsuccessful in relation to the balance of the documents on the application, it still would have been necessary to bring the application with respect to document 26 even if no orders were sought in relation to the balance. Second, the Defendant accepted at the hearing that it failed to meet its obligations to disclose certain documents pursuant to s 27(1)(a) of the PIPA and it was only by the Plaintiff bringing the application that the Defendant admitted its breaches of the PIPA.
The defendant points out that the plaintiff’s original application, filed in April 2021, sought an order precluding the defendant from using any document in its List of Documents. By an amended application filed on 25 June 2021, the date of the hearing of the application in Townsville, the Plaintiff reduced the number of documents in respect of which the prohibition was sought to 15 documents. While waiting for the decision, the number of documents sought to be prohibited was further reduced to only six. So, it is submitted, the plaintiff succeeded at only a small portion of the orders sought, whereas the defendant has succeeded in relation to all bar one of the 54 documents the subject of its application.
Rule 681 of the Uniform Civil Procedure Rules 1999 provides that costs should follow the event unless the Court is persuaded that another order is appropriate. The starting point then is that the parties have each had success, to varying degrees, in their respective applications.
The plaintiff was right, if only to a small degree, to bring the application. It brought to adjudication a dispute about what documents could be used by the defendant at the trial. The issue was, ultimately, a matter going to the conduct of the trial, if there be one. Where both parties had some success, and given the nature of the issue as I have just described it, it is proper that the costs of the application be costs in the proceeding.