Practice and Procedures - costs - offer to settle by plaintiff under UCPR r360 for amount of claim plus costs

In JLG Industries Inc v Teetree Pty Ltd [2002] QDC 031 the court considered the implications in terms of costs of an offer to settle by the plaintiff under the UCPR where the element of compromise involved only acceptance of the amount of claim without interest.

Costs - solicitor's retainer on 'no win, no fee' basis - meaning of 'win' - solicitor not entitled to recover excess of costs over amount paid on settlement - no consideration for variation of oral retainer.

In Baker Johnson Lawyers v Jorgensen [2002] QDC 205 McGill DCJ considered the meaning of a 'no win, no fee' retainer and concluded that, in the absence of qualification by agreement, solicitors retained on that basis were not entitled to recover costs exceeding the amount of any judgment or settlement.

Improper coaching of witnesses costs defendant its judgment

In its judgment on April 11, 2005, in Day v Perisher Blue Pty Ltd [2005] NSWCA 110, the NSW Court of Appeal overturned the decision of the District Court in favour of the defendant. The main ground for the decision of the Court of Appeal related to the conduct of the defendant's solicitors and its witnesses prior to trial. The Court subsequently referred the matter to the Legal Services Commissioner.

Practice and procedure : solicitors' liens for costs

In Patterson v Cohen [2005] NSWSC 635 Hamilton J examined the authorities in relation to what are commonly called 'fruits of litigation' liens. The judgment provides a very useful summary of the principles which apply.

Party to litigation insolvent company - costs order against non-party liquidator

In Kimtran Pty Ltd v Downie [2003] QDC 043 the court allowed in part an appeal from the refusal by the Queensland Building Tribunal to order the respondent liquidators pay the appellants' costs of proceedings in the Tribunal. The decision involved an examination of authorities which have considered the circumstances in which it is in the interests of justice to make an order for costs against a non-party.

Costs order against company in liquidation unlikely to be effective indemnity

In Kimtran v Downie [2003] QCA 424, the Queensland Court of Appeal allowed an appeal from the decision of a District Court judge who had ordered costs against a non-party liquidator. It held that the court's decision in relation to the awarding of costs against a liquidator was not constrained by the decision of the of the Court of Appeal in Mahaffey v Belar Pty Ltd [1999] QCA 2 in the manner stated in the District Court.

Counting the costs : assessments under the UCPR

In McCoombes v Curragh Queensland Mining Ltd [2001] QDC 142 the court considered a number of significant issues in relation to assessments of costs under the Uniform Civil Procedure Rules 1999 (Qld). The Court of Appeal subsequently declined an application for leave to appeal the decision under s118(3) of the District Court Act 1967 (McCoombes v Curragh Queensland Mining Ltd [2001] QCA 379. The judgment in the District Court, and on some matters the subsequent observations in the Court of Appeal, provide clarification in respect of many issues relating the assessment of costs under the UCPR.

Should the court direct that costs ordered to be recovered on the indemnity basis be assessed by reference to a costs agreement between the successful party and their solicitors?

The decision in Hook v Boreham & QBE Insurance (Australia) Limited [2006] QDC 304 considered whether the court should go further than order that costs be assessed on the indemnity basis, but should also specify the basis by which those indemnity costs should be determined. The decision makes it clear that under r704(3) of the Uniform Civil Procedure Rules, questions of that nature are ordinarily preserved to the discretion of the Registrar.

Receivers' future liability for costs

In Juniper Property Holdings No.15 Pty Ltd v Caltabiano [2015] QSC 95, Jackson J considered what he described as a 'novel point' as to whether the court had jurisdiction to make a determination of the liability of receivers and managers appointed to the plaintiff to pay any costs orders that may be made in favour of the defendant.

Costs assessor selection: A question of timing, or cost?

In Lessbrook Pty Ltd (in liq) v Whap; Stephen; Bowie; Kepa & Kepa [2014] QCA 63 the Queensland Court of Appeal dealt with significant questions of general application relating to the appointment of assessors to conduct an assessment of costs under the Uniform Civil Procedure Rules 1999 (Qld) (UCPR).

Pacific Rim treaty threatens public health: Patent law and medical procedures

Doctors, surgeons, and physicians around the Pacific Rim should be concerned by the proposals revealed by WikiLeaks in the Trans-Pacific Partnership (TPP). One of the most controversial features of the TPP is the proposal to provide for patent protection in respect of medical procedures. As Public Citizen observed, ‘Health providers, including surgeons, could be liable for the methods they use to treat patients.’ The civil society group noted: ‘Essentially, except for when a surgeon uses her bare hands, surgical methods would be patentable under the U.S. proposal.’ The TPP takes a broad approach to patents and medicine; lacks appropriate safeguards; and fails to address larger questions about equity, development, and human rights. Such a measure could result in greater litigation against medical professionals; barriers to access to medical procedures for patients; and skyrocketing health costs.

The Trans-Pacific Partnership: Copyright Law, the Creative Industries, and Internet Freedom

The Trans-Pacific Partnership (TPP) is a highly secretive trade agreement being negotiated between the US and eleven Pacific Rim countries, including Australia. Having obtained a fast-track authority from the United States Congress, US President Barack Obama is keen to finalise the deal. However, he was unable to achieve a resolution of the deal at recent talks in Hawaii on the TPP. A number of chapters of the TPP will affect the creative artists, cultural industries and internet freedom — including the intellectual property chapter, the investment chapter, and the electronic commerce chapter. Legacy copyright industries have pushed for longer and stronger copyright protection throughout the Pacific Rim. In the wake of the Hawaii talks, Knowledge Ecology International leaked the latest version of the intellectual property chapter of the TPP. Jamie Love of Knowledge Ecology International commented upon the leaked text about copyright law: ‘In many sections of the text, the TPP would change global norms, restrict access to knowledge, create significant financial risks for persons using and sharing information, and, in some cases, impose new costs on persons producing new knowledge goods.’ The recent leaked text reveals a philosophical debate about the nature of intellectual property law. There are mixed messages in respect of the treatment of the public domain under copyright law. In one part of the agreement on internet service providers, there is text that says that the parties recognise the need for ‘promoting innovation and creativity,’ ‘facilitating the diffusion of information, knowledge, technology, culture, and the arts’, and ‘foster competition and open and efficient markets.’ A number of countries suggested ‘acknowledging the importance of the public domain.’ The United States and Japan opposed the recognition of the public domain in this text.

Costs assessment not an each-way bet: Radich v Kenway [2014] QDC 60

In Radich v Kenway [2014] QDC 60 McGinness DCJ considered issues relating to the assessment of costs under the Legal Profession Act 2007 (Qld). This recent costs assessment case from the District Court clearly illustrates the interplay between the relevant elements of the Legal Profession Act 2007 and Uniform Civil Procedure Rules 1999.

Keeping clear on costs: Geatches v Anglo Coal (Moranbah North Management Pty Ltd) [2014] QSC 106

In Geatches v Anglo Coal (Moranbah North Management Pty Ltd [2014] QSC 106, a dispute arose in the context of an assessment of costs as to the meaning to be attributed to particular terms of settlement and discharge signed by the parties. The court was required to consider the implications of those documents, and of a subsequent consent order intended to reflect the agreed settlement. Recovery of costs - terms of settlement and discharge exclude recovery of costs against one party and require other party to pay costs of claim against it - whether only subsequent consent order should be construed - implications where costs were common and mixed costs - whether costs should be apportioned

On the construction of costs: McDermott v Robinson Helicopter Company (No.2) [2014] QSC 213

The decision in McDermott v Robinson Helicopter Company (No 2) [2014] QSC 213 involves an extensive examination of authorities on the general principle relating to the awarding of costs to a successful party. The court concluded that there was a predilection in favour of distributing costs according to the outcome or 'event' of particular issues in the action.