[13] Awarding costs of issues, whilst possible, can present difficulties for costs assessors in assessing costs statements delivered as a consequence of such an order. Those complications can be avoided by awarding one side or the other a proportion of the costs.[16]
[14] The appellant having failed on that part of the appeal that relates to the refusal of the learned primary judge to recuse himself, if costs follow the event, then they could be ordered against her.
[15] As for the appeal against the summary judgment, most of the allegations by the appellant do not relate directly to the way in which that application was conducted. True it is that the application for summary judgment became the primary relief that the respondents sought, as opposed to striking out the statement of claim. It is also true that there had been a number of hearings in respect of the part-heard application to strike out before summary judgment was elevated to the primary relief. However, summary judgment was always sought as alternative relief. There was nothing improper in the respondents' deciding to seek summary judgment given the state of the pleadings, nor in the way that application was conducted.
[16] Ms Day's complaints as outlined in her submissions on costs are misconceived. Whatever might be the correct characterisation of the events in 2013 or 2015, surrounding the termination of her employment and the documents brought into existence relating to that termination, none of it impacts upon the way in which the application for summary judgment was conducted, nor the prima facie entitlement of the respondents to seek that relief given the state of the pleadings.
[17] The allegation that Mr Lerch is or was suffering from alcohol abuse is simply scandalous, and no regard should be paid to it.
[18] The contention that Mr Lerch threatened the appellant in his email of 29 May 2017 is misconceived. The email was part of material which the appellant sought to adduce as further evidence in the appeal.[17] It was ruled irrelevant and therefore excluded. However, the general nature of it is referred to in the primary reasons, namely: (i) predicting that costs would be ordered against her; (ii) saying what the total of those costs might be, and that such orders would be enforced; and (iii) requesting that she pay the costs.[18] The email does not bear the characterisation that the appellant gives to it in her current outline.
[19] As for the conduct subsequent to the delivery of the principal reasons, that can be disposed of quickly. On the day following the principal reasons Mr Lerch emailed the appellant asking if she could provide her amended statement of claim within 21 days, and whether she would consent to the matter being placed on the supervised case list for self-represented parties. The question of amendment was said to be important because, if the appellant said she was not a QCL employee at the time of the injury, Mr Lerch proposed to return to his public liability insurer "with a renewed request for indemnity for your claim". The reason for Mr Lerch's request is obvious as (i) the appellant's success in overturning the summary judgment order was essentially because there was a factual dispute as to when and how her employment was terminated, and (ii) the case which she wished to agitate was not the one which was pleaded in her statement of claim. It follows that Mr Lerch's request as to whether she intended to amend was perfectly reasonable.