Deborah Burt v Woolworths Limited [1997] ACTSC 48 (27 June 1997)

SUPREME COURT OF THE ACT

DEBORAH BURT v. WOOLWORTHS LIMITED
No. SC 378 of 1996
Number of
pages - 3
Practice and Procedure

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

MASTER T CONNOLLY

CATCHWORDS

Practice and Procedure - Application to stay execution of costs orders - Costs orders against plaintiff in interlocutory proceedings - Personal injuries claim - Defendant sought to enforce costs orders - Plaintiff unemployed with no source of income - No Issue of Principle.

ACT Supreme Court Rules O43 r.17; O61A

Judiciary (Stay of Proceedings) Act 1933

HEARING

CANBERRA, 27 June 1997 (decision and hearing)

27:6:1997

Appearances

Counsel for the Plaintiff: Mr F G Parker

Instructing Solicitors: Gary Robb & Associates

Counsel for the Defendant: Mr W Arthur

Instructing Solicitors: Blake Dawson Waldron

ORDER

THE COURT ORDERS THAT:

1. The execution of the costs orders made by this Honourable Court on 30 September 1996 and 8 November 1996 be stayed until the conclusion of these proceedings or 1 January 1999, whichever is sooner.

2. The defendant pay the plaintiff's costs of and incidental to this application

3. The execution of the costs order made this day against the defendant be stayed until the conclusion of these proceedings or 1 January 1999, whichever is sooner.

DECISION

MASTER T CONNOLLY

This is an application by way of Notice of Motion to stay the execution of two orders for costs made against the plaintiff applicant in interlocutory proceedings in this matter. While applications to stay proceedings generally are matters which must properly be heard before a judge of this Court, arising as they do from the inherent power of the Court or from the Judiciary (Stay of Proceedings) Act 1933, there is a specific provision in Order 43 rule 17 allowing for the stay of execution of, inter alia, an order for costs, and this power is, pursuant to Order 61A of the Rules of Court, a power exercisable by the Master. The matter was thus properly within my jurisdiction and was able to proceed.

The plaintiff applicant has brought an action for personal injuries arising from her employment with Woolworths Limited. The defendant was described in the affidavit of Mr Redpath as one of the largest retailers in Australia. There is no question that this is other than a genuine claim for personal injuries, although of course issues are still, properly, in contest between the parties. I was informed that some discussions have occurred in relation to settlement prospects, which is of course most appropriate and a matter actively encouraged by the pre trial procedures in personal injuries litigation in this court.

The plaintiff was unsuccessful in two interlocutory applications, and orders for costs were, as is appropriate, made against her. These costs were, by consent, assessed in the sum of $1,250 on 2 April 1997. On 14 May the solicitor for the applicant wrote to the solicitor for the defendant requesting agreement to stay the execution of these orders until the damages claim was concluded. The letter, which was annexed to an affidavit of Mr Redpath, stated:

"We enclose Answers to Interrogatories as required.

We note that our client is unemployed and that your client is the largest retail company in Australia.

We note further that there are very few steps left before this matter is set down for hearing.

In the circumstances, we invite you to obtain instructions from your client as to whether they are prepared to hold off the enforcement of their order for costs until the conclusion of these proceedings."

By letter of 16 May 1997 the solicitors for the defendant dealt with some issues arising from the interrogatories, and stated

"In relation to the last paragraph of your letter of 14 May 1997, our client is not prepared to wait for payment of costs."

On 19 May the defendant took out an order for the plaintiff to attend to be examined before the Registrar of this Court in relation to what debts she has owing and the means she has to satisfy such debts. I take it that this order was served on the plaintiff, along with conduct money to attend, by the defendant. I was not advised of any prior correspondence from the defendant to the plaintiff.

Mr Redpath in his affidavit states that he was informed and believes that there have been telephone conversations between the solicitor for the defendant, Mr Arthur, and Mr Parker of counsel, who is retained by the plaintiff, whereby Mr Arthur has proposed that settlement negotiations be commenced in relation to the plaintiff's claim against the defendant. Mr Redpath was required to attend for cross examination on his affidavit, and this assertion was not challenged by Mr Arthur.

The plaintiff seeks the exercise of the discretion of the Court to stay this order. Mr Redpath deposes that the plaintiff is unemployed, and has been since May 1997, and has no source of income with two dependant children. This is a genuine personal injuries claim, and I am informed that settlement negotiations have been proposed. The plaintiff argues that it is harsh and oppressive at this stage of the litigation to enforce this costs order, and to take the plaintiff through the process of a public examination in relation to this debt for some $1,250.

Mr Redpath said in cross examination that he was embarrassed for the legal profession when he learned that this order was to be enforced in this way. He said that he had never heard of this happening before. He is an experienced practitioner in personal injuries matters. He was not cross examined on this point, although Mr Arthur later told me from the bar table that costs are often enforced. So they are, and properly so, in many circumstances, but I have the uncontradicted evidence of Mr Redpath that in circumstances of legitimate and genuine personal injuries claims, where genuine settlement negotiations are imminent, and where in any event the matter may soon be set down, to enforce an interlocutory costs order against an impecunious plaintiff is most unusual. The sum may not be large, but to this plaintiff, at this time, it presents a substantial difficulty. The defendant is of course a most substantial commercial organisation.I am concerned that the execution of the costs order, at a time when the defendant is proposing settlement negotiations, could put unconscionable pressure on the plaintiff. A plaintiff with no means, confronted with the execution of such an order, could well feel under dire pressure to settle her claim for a sum below which is appropriate, just to avoid the public examination process.

I am satisfied that it is appropriate to stay the execution of the costs order. I made the appropriate order at the hearing of this matter, but as this seemed to me to raise questions of general importance, I indicated that I would issue my reasons for decision at a later date. The stay of the execution of the costs order will allow the substantial personal injuries claim to proceed, to settlement or trial, without the plaintiff being under the pressure of public examination in relation to this debt. The debt will of course remain, and be paid, either out of any settlement sum, or in any event at the end of proceedings. I accept Mr Redpath's evidence that this attempt to enforce in this way against a plaintiff in these circumstances is unusual, and I hope that it remains that way.

In relation to costs, I heard from Mr Parker of attempts to negotiate this matter to avoid the need for this Notice of Motion or the issue of the order for examination of judgment debtor. I am satisfied that the plaintiff should have the costs of this application, although I agreed to Mr Arthur's request that this costs order also be stayed pending the resolution of the matter.