Marsh v Pine Hills Football Club & Anor [2025] QDC 166 | Case summary

District Court of Queensland|2025-11-14|Before: McMurdo J

[1] The plaintiff commenced an action seeking, inter alia, damages in defamation based on asserted publications by each defendant which were about the plaintiff. After the pleadings closed, the defendants applied for summary judgment or, alternatively for the Statement of Claim to be struck out ("the primary application"). They failed on the former application but succeeded on the latter, with liberty given to re-plead.[1]
[2] At that time, I ordered the plaintiff to pay the defendants' costs of and incidental to the primary application on the standard basis, but gave liberty to apply on seven days' notice given the parties had not been heard on the issue. The plaintiff now applies for an order that the defendants pay her costs of the primary application. In the alternative she has submitted variously that there be no order for costs of the primary application[2] or that the costs be apportioned to reflect the respective success on the primary application.[3]
[3] The essence of the plaintiff's submissions is that the primary application involved two distinct forms of relief. The application for summary judgment was the principal and more complex limb of the application, and the defendants failed entirely on that application. Although the defendants did succeed on the other limb, the strike out application was the more complex and resource intensive part of the application. The defendants' success "merely" required the plaintiff to clarify her pleadings. It is in essence submitted that the overall justice of the outcome of the primary application requires that the orders be made as sought. The plaintiff relies on Ryan v Worthington[4] and University of Queensland and Anor v Y[5] to support her submissions.
[4] In the course of her written submissions, the plaintiff has correctly observed that the usual rule of costs following the event is not an absolute rule, and that the Court has a broad discretion to make such orders as are considered appropriate. However, that does not mean that, in the case of mixed success on an application, a departure from the usual rule is necessarily required.

"... McMurdo J's statement in Whiting v Somerset Regional Council (No 2) that "[o]rdinarily the fact that a successful plaintiff or applicant fails on particular arguments does not mean that he should be deprived of some of its costs or require an apportionment of costs between issues." The same general principle was expressed in somewhat less emphatic terms by Muir JA in Alborn v Stephens:

The usual rule is that the costs of a proceeding follow the event. [Uniform Civil Procedure Rules 1999 (Qld), r 681 and Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at [67] to [70].] The "event" is not to be determined merely by reference to the judgment or order obtained by the plaintiff or appellant, but is to be determined by reference to "the events or issues, if more than one, arising in the proceedings". [Interchase Corporation Ltd (in liq) v Grosvenor Hill (Qld) Pty Ltd (No 3) [2003] 1 Qd R 26 at 60; Rosniak v Government Insurance Office (1997) 41 NSWLR 608 at 615; and Byrns v Davie [1991] VicRp 93; [1991] 2 VR 568 at 570 and 571.] However, a party which has not been entirely successful is not inevitably or even, perhaps, normally deprived of some of its costs. [Waterman v Gerling (Costs) [2005] NSWSC 1111; Todrell Pty Ltd v Finch (No 2) [2007] QSC 386.]" (footnotes omitted)

[6] In the primary reasons I observed that the two applications were "substantially inter-twined".[7] The defendants' application for summary judgment had two bases: firstly, that the Statement of Claim alleged publication to the plaintiff, which could not amount to a publication at law and secondly, that communications within an organisation, for the purposes of the organisation, cannot amount to a publication at law.
[7] The first basis fell away once it was explained by Counsel for the plaintiff what was intended to be conveyed by the pleading. The defendants' application was reasonably made in light of the plain reading of the Statement of Claim, as it then stood. The ambiguity was a reason to allow the strike out application.
[8] True it is that the defendants persisted with the second basis, even in light of the explanation provided but it was, with respect, far from the most complex of the arguments raised. For the reasons explained in the primary reasons, it is a proposition that does not appear to be settled at law and, the success of the argument will rise and fall on factual findings made. That made it an unsuitable matter on which to grant summary judgment.
[9] The fundamental difficulty with the statement of claim was that, on a plain reading, it did not convey that which it was explained in the course of submissions it was intended to convey. The strike out application was properly made. To suggest, as the plaintiff now does, that the defendants' success "merely" required a clarification of the pleading fails, with respect, to grasp the fundamental importance of the pleading itself to the future conduct of the proceedings.
[10] The success on the summary judgment application would have had greater ramifications for the plaintiff, but the defendants' success was more than merely trifling. They obtained the strike out of the whole of the pleading, not a few sentences or paragraphs in isolation. They had to bring the application to achieve that success, and should not have to bear the costs of doing so.
[11] Ultimately, the issues were so inter-twined that this is not an appropriate case for a departure from the usual rule, nor to apportion costs. In a practical sense, the applications were not separate and distinct. The defendants' persistence with the second basis for the summary judgment application does not, in the circumstances, justify a departure from that usual rule. Both Ryan v Worthington and University of Queensland and Anor v Y are factually distinguishable. They provide examples of costs orders being tailored to meet the justice of the particular factual scenario then before the Court, but provide no real guidance here. Further, there is no rule or practice that costs orders should be "split" when there is mixed success on an application for summary judgment, alternatively for striking out.[8]
[12] Therefore, the order earlier made as to the costs of the primary application will not be disturbed. Although the plaintiff's submissions are silent on the issue, the defendants have wholly succeeded on this application, and they should have their costs of it, on the standard basis.

[1] Marsh v Pine Hills Football Club and Anor [2025] QDC 130. ("the primary reasons")

[2] Plaintiff's submissions on costs filed 16 October 2025 at paragraph 2.

[3] Plaintiff's submissions on costs filed 16 October 2025 at paragraphs 15 and 16.

[8] See for example Thompson v Cavalier King Charles Rescue (Qld) Inc. [2022] QSC 161, [22]-[23].

Civil Procedure Rules 1999(Qld)

Marsh v Pine Hills Football Club & Anor

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