PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS –
COSTS – PARTIES AND NON-PARTIES – COSTS IN PROCEEDINGS
WHERE
MULTIPLE PARTIES – COSTS BETWEEN CO-DEFENDANTS – where the plaintiff
Source
Original judgment source is linked above.
Catchwords
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS –COSTS – PARTIES AND NON-PARTIES – COSTS IN PROCEEDINGSWHEREMULTIPLE PARTIES – COSTS BETWEEN CO-DEFENDANTS – where the plaintiffbrought a claim against the first and seconddefendants and others for variousrelief relating to a property previously owned by a member of theplaintiff’s family –where first and second defendants successfullyapplied to have the claim against them dismissed – where the first andseconddefendants seek costs – whether the plaintiff should pay the costsof the first defendant on the standard basis – whereit was held that thediscretion to award indemnity costs arose – where the second defendant hasprovided the court with correspondencedemonstrating that the plaintiff wasinformed that their claim was untenable several years before the claim wasbrought – whetherthe plaintiff should pay the costs of the second
defendant on an indemnity basis
Uniform Civil Procedure Rules 1999
(Qld), r 681
Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR
333
[2019] HCA 29, considered
Birketu Pty Ltd v Atanaskovic (2025) 99
ALJR 321
[2025] HCA 2, considered
Dawson v Public Trustee of
Queensland [2025] QSC
115, related
London Scottish Benefit
Society v Chorley [1884] UKLawRpKQB 115
(1884) 13 QBD 872, cited
Judgment (25 paragraphs)
[1]
No appearance or written submissions for the plaintiff/respondent
[2]
CE Christensen, Crown Solicitor for the first defendant/applicant
[3]
C.W. Hooper & Hooper for the second defendant/applicant
[4]
[1] The Public Trustee of Queensland, who was the first defendant, and CW Hooper Pty Ltd, who was the second defendant, were both misnamed in the proceedings. They brought applications to correct that error and to have the claims against them summarily dismissed.
[2] On 23 May 2025, I made orders correcting the proper description of the first and second defendants in the proceedings, and made further orders, the effect of which was to dismiss the claims brought against them.[1]
[3] I was concerned as to the effect of the High Court's decisions in Bell Lawyers Pty Ltd v Pentelow[2] and Birketu Pty Ltd v Atanaskovic[3] upon the question of costs. I gave directions for the filing of written submissions by the first and second defendants and the plaintiff, and directed that the question of costs would be determined without further oral hearing.
[4] Submissions were received from both the first and second defendants. No submissions were received on behalf of the plaintiff.
[5] In Bell and Birketu, the principle that a litigant who represents themselves in proceedings is not entitled to claim for that work was affirmed. The Chorley[4] exception, that self-represented lawyers could claim professional costs, was disapproved. The "in-house lawyer rule",[5] which permits litigants to claim costs of employed lawyers, was not disturbed.
[5]
[6] The Public Trustee seeks its costs on the standard basis.
[7] In the primary judgment, the solicitors for the Public Trustee are noted as "Official Solicitor of the Public Trustee of Queensland". As has been pointed out in the further written submissions, that is an error. The Public Trustee was represented by the Crown Solicitor. That being the case, neither the Chorley principle nor the "in-house lawyer rule" need be considered.
[8] As regards the claim against the Public Trustee, that claim has failed and there is no reason to suggest a departure from the usual rule that costs follow the event.[6]
[9] It is appropriate to order that the plaintiff pay the Public Trustee's costs on the standard basis.
[6]
[10] The second defendant is an incorporated practice. By its written submissions it only seeks costs of work by an employed solicitor and paralegals, and outlays such as counsel's fees. No claim is made for work performed by "the principal", who I assume is the controller of the incorporated practice.
[11] In Birketu Pty Ltd v Atanaskovic,[7] the plurality held that, despite disapproval of the Chorley principle, the in-house lawyer exception continues to prevail,[8] and, so, the second defendant submits it should have the costs attributable to its employees, and counsel.
[12] That submission is accepted.
[13] In the principal judgment, I pointed to various features of the case which led me to conclude that the discretion to award costs in favour of the second defendant on the indemnity basis arose.[9]
[14] In addition to those matters raised in the primary judgment, further relevant correspondence has come to light.
[15] On 2 August 2018, Bundaberg solicitors, Payne Butler Lang, who then held instructions for the plaintiff, wrote to the second defendant on 2 August 2018 in these terms:
[7]
"We act on behalf of Christine Maree Dawson, the granddaughter of Josephine Schroder and Percy Schroder of 30 Railway Street, Laidley.
[8]
Our client's instructions are that her grandfather died in 1993 and her grandmother in 1997.
[9]
Our client believes that she is the beneficiary of a testamentary trust established under either her grandfather's or grandmother's Will.
[10]
We request that you provide any information held in your records on any trusts established that our client is a beneficiary of.
[11]
[16] The very next day, the second defendant responded in these terms:
[12]
"We refer to your facsimile letter of the 2nd August, 2018 in relation to the abovenamed Estates.
[13]
We advise the Will of Percy Schroder left the whole of the Estate to his wife, Josephine Augusta Schroder.
[14]
We advise the Will of Josephine Augusta Schroder left the residuary estate to her four surviving children.
[15]
Accordingly, there is no testamentary trust of which your client is a beneficiary.
[16]
[17] The position asserted by the second defendant in its letter of 3 August 2018 is correct.
[18] Notwithstanding having been told, now almost seven years ago, what the true position was, the plaintiff instituted proceedings in 2024, maintained an untenable position, and when the first and second defendants brought their application to strike out her proceedings, she did not even appear at the application.
[19] In my judgement this is a clear case for the award of costs on the indemnity basis.
[17]
[20] The appropriate orders, which I make, are as follows:
The plaintiff pay the first defendant's costs of the proceedings on the standard basis.
The plaintiff pay the second defendant's costs of the proceedings limited to work performed by its employees, together with outlays and expenses including counsel's fees all on the indemnity basis.