AZW v State of Queensland

• [2] The defendant submits that the State has been successful in its application and should have its costs. It is submitted that the general rule in rule 681 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) should not be departed from. A more realistic attitude by the plaintiff would have obviated the need for the hearing.
• [3] The State further seeks a direction that its costs thrown away by the amendments be assessed and recoverable immediately. This is pursuant to r 386(2).
• [4] It is submitted that this is an appropriate case for the costs to be assessed and payable immediately as the final determination of the proceedings is long distant and the State would not have incurred the costs of reviewing and responding to the amended pleadings if the plaintiff had responded comprehensively. Two important discrete issues were resolved by the State's application, and this narrows the case in a significant way.
• [5] It is submitted the plaintiff pursued his defence of the pleading, despite detailed correspondence from the State as to its flaws.

• [6] The plaintiff seeks his costs of the application on the basis the defendant failed. The defendant's application was to strike out the plaintiff's fifth further amended statement of claim pursuant to r 171, or in the exercise of the court's inherent jurisdiction. It also sought an order that there be no leave to replead. In other words, the defendant sought to terminate the plaintiff's claim. It is submitted that the plaintiff succeeded in defeating the primary relief sought by the State. It is important to consider the content of the r 444 letters of the defendant when considering the question of costs because the application itself did not seek further and better particulars. The defendant complained about paragraphs 13 (a), (c) and (f), and the court retained paragraph 13(f). It is also pointed out that other paragraphs of the pleading were retained. It is also noteworthy that the plaintiff accepted that paragraph 20A be recast.
• [7] It is submitted the State has not been successful in its application and much of the pleading remains. It is also submitted that a number of the defendant's submissions were not accepted by the court. It is submitted the defendant could have, instead of attempting to terminate the claim, sought particulars or applied to strike out parts of the statement of claim.
• [8] With respect to r 386(2) of the UCPR, this clearly states that the costs are not to be assessed and are not recoverable until the proceeding ends.
• [9] In any event, the defendant has failed to file an amended defence. It is submitted the defendant has been overzealous in its concerns relating to the statement of claim.

• [10] Rule 681 of the UCPR provides:

(1) Costs of a proceeding, including an application in a proceeding, are in the discretion of the court but follow the event, unless the court orders otherwise.

(2) Subrule (1) applies unless these rules provide otherwise."

• [11] In Oshlack v Richmond River Council[2] it was noted at [44] that costs are not made to punish an unsuccessful party. McHugh J at [67] noted that the usual order as to costs embodies the important principle that, subject to certain limited exceptions, a successful party in litigation is entitled to an award of costs in its favour. The principle is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant. Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party.
• [12] Although costs usually follow the event, there is a wide discretion in the court to make a different order, provided the discretion is exercised judicially.[3]
• [13] In this particular case, the defendant failed in its attempt to terminate the proceedings in their entirety. On the other hand, its succeeded in striking out a number of untenable aspects of the plaintiffs claim. The plaintiff sought to justify all of the pleading.
• [14] I consider this is a case though where the plaintiff should have responded to some of the concerns raised by the defendant as to the pleading.
• [15] In all of the circumstances, in the exercise of my discretion I have decided to order the plaintiff pay 50 percent of the defendant's costs of and incidental to the application on the standard basis in any event.[4] In light of the nature of the claim brought by the plaintiff, I think it is appropriate for the defendant to have its costs once the action is complete. The significant disparity in the resources of the parties is a relevant consideration.
• [16] With respect to the application concerning the amendments from the amended statement of claim to the fifth further statements of claim, I am not satisfied that the costs should be assessed and be recoverable immediately. I think this is a matter where the trial judge can determine all of these issues on appropriate material at the conclusion of the trial.
• [17] Additionally, the general rule under r 386(2) is that such costs are not to be assessed and are not recoverable until the proceeding ends. I think the general rule should apply here.
• [18] For the reasons given I make the following order:-
  1. I order that the plaintiff pay the 50 % of the defendant's costs of and incidental to the application to be assessed on the standard basis in any event.

[1] [2025] QSC 161.

[2] [1998] HCA 11; (1998) 193 CLR 72.

[3] Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164 at [25].

[4] It may be that the trial settles or the plaintiff is successful at the conclusion of the trial and the costs can be paid from that sum.