PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS –
COSTS – GENERAL RULE: COSTS FOLLOW EVENT – WHERE
ACTION SETTLED OR
OTHERWISE DETERMINED WITHOUT HEARING – where the Supreme Court refused to
Source
Original judgment source is linked above.
Catchwords
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS –COSTS – GENERAL RULE: COSTS FOLLOW EVENT – WHEREACTION SETTLED OROTHERWISE DETERMINED WITHOUT HEARING – where the Supreme Court refused toentertain an application unders 73(2) of theAssociations Incorporation Act 1981 (Qld)– whether the question of costs of the proceeding arises – whetherthe plaintiff should be ordered to pay costsof the application and theproceeding on the indemnity basisPROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS –COSTS – INDEMNITY COSTS – RELEVANT CONSIDERATIONSGENERALLY –where the third defendant sought an order for indemnity costs – whetherthe plaintiff should be ordered topay costs of the application and theproceeding on the indemnity basisAssociations Incorporation Act 1981(Qld) s 73Civil Proceedings Act 2011 (Qld) s 15
Uniform Civil
Procedure Rules 1999 (Qld) r 171, r 293, r 681, r 685, r
703
Asta Developments (Aust) Pty Ltd v Amasya Enterprises Pty Ltd
[2016] VSCA 186, cited
Batistatos v Road Traffic Authority of New
South Wales [2006] HCA 27
(2006) 226 CLR 256, cited
Foukarre v Angreb Pty Ltd
[2006] NSWCA 335, cited
Muhibbah Engineering (M) BHD v Trust Co Ltd
[2009] NSWCA 205, cited
Port of Melbourne Authority v Anshun Pty Ltd
(No 1) [1980] HCA 41
(1980) 147 CLR 35, cited
Quach v Health Care Complaints
Commission (No 2) [2015] NSWCA 311, cited
Re Minister for Immigration
and Ethnic Affairs
Ex parte Lai Qin [1997] HCA 6
(1997) 186 CLR 622,
cited
Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc [2022]
QSC 82, cited
Villasenor v The World of Residensea II Ltd [2007] FCA
647, cited
Judgment (42 paragraphs)
[1]
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - GENERAL RULE: COSTS FOLLOW EVENT - WHERE ACTION SETTLED OR OTHERWISE DETERMINED WITHOUT HEARING - where the Supreme Court refused to entertain an application under s 73(2) of the Associations Incorporation Act1981 (Qld) - whether the question of costs of the proceeding arises - whether the plaintiff should be ordered to pay costs of the application and the proceeding on the indemnity basis
[2]
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - INDEMNITY COSTS - RELEVANT CONSIDERATIONS GENERALLY - where the third defendant sought an order for indemnity costs - whether the plaintiff should be ordered to pay costs of the application and the proceeding on the indemnity basis
Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc[2022] QSC 82, cited
[14]
Villasenor v The World of Residensea II Ltd[2007] FCA 647, cited
[15]
[1] On 9 May 2022 the Court ordered that the plaintiff's claim against the first defendant be permanently stayed and that the plaintiff's claim against the third defendant be dismissed, and made directions for submissions on costs in writing ("principal judgment").[1]
[2] The first defendant and third defendant made separate submissions applying for an order that the plaintiff pay their costs of the application and the proceeding to be assessed on the indemnity basis. The plaintiff resists both orders. He submits he should be ordered to pay one quarter of the first defendant's costs of the application but no order should be made for the first defendant's costs of the proceeding and that he should be ordered to pay one third of the third defendant's costs of the application and the third defendant must bear her own costs of the proceeding.
[3] The parties' submissions on the question of costs ran to eight pages of written submissions by the defendants, including extensive reference to other materials in those submissions, and 31 pages of written submissions by the plaintiff including even more extensive references to factual materials from the course of the proceeding. Although some reference must be made to the range of considerations that were raised by the parties, they should not be indulged in this already hapless proceeding by further extensive written reasons on all matters raised by them, and these reasons are confined to the considerations which are necessary to dispose of the questions of costs.
[4] The purely statutory power to award costs of a proceeding is conferred in general discretionary terms[2] but the power is informed by the provision in the rules of Court[3] that costs follow the event unless the Court otherwise orders.[4] The rules of Court also expressly confer the power to, or provide that the Court may, order costs to be assessed on the indemnity basis.[5]
[5] The first defendant's application decided by the principal judgment was made in the alternative for an order pursuant to s 73(2) of the Associations Incorporation Act (Qld) ("the Act") or for an order for summary judgment or for an order striking out the whole of the claim and statement of claim or parts of the claim. The application sought an order that the plaintiff pay the first defendant's costs of the proceeding on the standard basis and of the application on the indemnity basis.
[16]
[8] The first defendant's application for an order that the plaintiff pay the first defendant's costs of the application and of the proceeding on the indemnity basis is surprising, for two reasons. First, that was not the order sought in the application itself. Second, at the hearing of the application on 25 March 2022 the first defendant handed up a draft order that sought an order that the plaintiff pay the costs of the application and the proceeding on the standard basis. It is not suggested that the first defendant withdrew from that position so as to make an application for indemnity costs of either the application or the proceeding before making written submissions to that effect pursuant to the Court's direction.
[9] The first defendant relies on a number of circumstances to justify an order that the costs of the application and the proceeding to be assessed on the indemnity basis, namely the plaintiff's:
[17]
(a) imprudent refusal of an offer of compromise;
(b) unreasonable conduct of the proceeding;
(c) making of allegations that ought never to have been made; and
(d) continuation of the proceeding for an ulterior motive.
[18]
[10] The imprudent refusal relied upon was the failure by the plaintiff to accept an offer by the first defendant to compromise this proceeding by bearing its costs of the proceeding on the basis that the first defendant would extend the time for the plaintiff to appeal the termination of his membership of the first defendant under its rules instead. The offer was made by a letter from the defendants' solicitors to the plaintiff dated 28 November 2013.
[11] The letter included the statement that should the plaintiff choose to reject the offer, the solicitors reserved the defendant's rights to bring the correspondence containing the offer to the attention of the Court both in respect of the complaints made by the plaintiff as to the termination of his membership and also when the Court was asked to consider the issue of payment of costs of the proceeding.
[12] By letter from the plaintiff to the defendant's solicitors dated 13 December 2013 the plaintiff responded that it defied logic (in his view) that he should expect fair treatment and a fully just result on an appeal to the membership of the first defendant. He further contended that a public apology must form a portion of "reparations" to be made to him and stated that he decided not to accept the offer which he believed attempted "to bury, with a tissue of legitimacy, a wholly illegitimate series of actions" by the defendants.
[13] The first defendant submits that the plaintiff's argument in oral submissions on the application decided by the principal judgment that the decision makers on appeal (being the members of the first defendant) would be the same people who decided to terminate his membership in the first instance was unmeritorious because it was premised on the unfounded assumption that the appeal would not be conducted fairly and that in any event, had the plaintiff been unsuccessful on appeal to the membership it would have nevertheless remained open to him to pursue his rights under the Act in relation to the appeal decision.
[14] The plaintiff's supplementary submissions on costs relied in detail on an argument that acceptance of the offer of an appeal would be seen as an acquiescence or an acceptance and possible election or waiver in respect of the invalidity of the original decision. It is unnecessary to consider the detail of that question. It is enough to observe that the basis of the first defendant's offer of compromise was that the plaintiff's claim was otherwise refuted as containing scandalous and embarrassing allegations that ought to be struck out and did not contain or give rise to any claim right or cause of action at law in the plaintiff's favour against any of the defendants. That is a different point from the question on which the first defendant ultimately succeeded in the principal judgment, namely that the first defendant's application filed on 25 February 2022 proceeding should be stopped by an order pursuant to of the Act.
[19]
(a) repeatedly failed to properly plead his case;
(b) been responsible for at least one aborted trial;
(c) failed to advance the proceeding with reasonable timeliness;
(d) repeatedly and unnecessarily served or relied upon voluminous, inadmissible or prolix material;
(e) advanced procedural arguments which were pedantic in nature and meritless;
(f) threatened further inutile proceedings concerning matters struck out or ruled irrelevant; and
(g) through his unreasonable conduct, added to the costs of the proceeding.[9]
[20]
(a) although a number of orders were made striking out his pleading, that was not always the case;
(b) he was not solely responsible for the aborted trial on 29 November 2015;
(c) the proceeding was managed on the supervised case list from 2014 and its slow progress or advancement was not his sole responsibility and was contributed to by the defendants;
(d) numerous documents included in filings by the defendants could also be described as voluminous, inadmissible or prolix material; and
(e) his filing of multiple supplementary affidavits of documents was justified by the continuing duty of disclosure and his voluminous affidavits on the application were caused by the failure of the first defendant to condescend to the particulars of the basis of its application made in the alternative, which led him to have affidavits at the ready for whatever might come his way at the hearing in order to defend his position.
[21]
[17] As well, the plaintiff submits that the proceeding against the first defendant is not concluded. But that is a mistaken view of the effect of a permanent stay in practice.[10]
[18] In addition, the first defendant submits that the plaintiff has throughout the course of the proceedings made a series of baseless and offensive allegations as well as allegations that are substantially pedantic and not designed to advance his legal rights but to traduce others, giving several examples.
[19] The plaintiff submits that the particular allegations were not baseless. Indeed, he reasserts claims that false statements were made by the third defendant and by the first defendant's solicitors. It is both unnecessary and undesirable to enter upon that subject matter further. However, I have not overlooked that the plaintiff's determination to assert impropriety on the part of those that represent the first defendant includes allegations about conduct in a case unrelated to the present case - which is scandalous behaviour that abuses the absolute privilege against defamation accorded to a litigant in this court. However, it is not necessary to engage further upon this subject matter. While distracting and unnecessary, even if all the relevant allegations were improperly made, they would not much contribute to the question of costs in the overall resolution of either the application or the proceeding.
[20] As to the plaintiff's unreasonable conduct adding to the costs of the proceeding, the principal judgment found that the unreasonable conduct of the plaintiff had added to the costs of the proceeding for the purposes of s 73(2)(c) of the Act.[11] The plaintiff's unreasonable conduct was illustrated by him embarking on unsuccessful appeals and an application for special leave to appeal. But the costs of those matters were dealt with by other orders and are not included in the subject matter of the costs of the present application or the proceeding. Second, it is true that the plaintiff failed to observe the implied undertaking to the Court under r 5 of the Uniform Civil Procedure Rules (Qld) ("UCPR") to proceed in an expeditious way so as to bring the claim to a final decision, but it is not necessarily true to say that only the plaintiff was responsible for that failure. Third, the plaintiff's attempt on the hearing of the application by his many affidavits to introduce a range of additional allegations of complaint beyond those pleaded in the statement of claim was without merit, but it did not in fact substantially add to the cost of, or delay in, the hearing of the first defendant's application. The particular relevance of those points was as to whether the proceeding should be stopped under of the Act, rather than whether there was unreasonable conduct for the purposes of an order that costs be assessed on the indemnity basis.
[22]
[28] The third defendant submitted that the factors which should be taken into account in the decision to award costs as between the third defendant and the plaintiff are that:
[23]
(a) the proceeding should never have been brought against the third defendant in the first place; and
(b) the plaintiff has conducted the proceeding in a vexatious and oppressive manner.
[24]
[29] The third defendant submitted that the plaintiff refused to confine himself to the relevant issues, made and continued with unreasonable demands over disclosure of documents, filed numerous iterations of the statement of claim to which the third defendant was required to respond and continued over and over to reagitate the same claims previously struck out. The third defendant submitted that as a consequence, there have been an inordinate number of interlocutory applications (including a number of strike out applications) and appeals which should have been unnecessary and which have had the effect of prolonging the proceedings even further.
[30] It is unnecessary to identify the range of applications and orders referred to by the third defendant in support of those submissions.
[31] The third defendant also relied on the offer to compromise made by the letter from the defendants' solicitors to the plaintiff dated 28 November 2013.
[32] The plaintiff's supplementary submissions dealt in detail with the third defendant's contention that the plaintiff has conducted the proceeding in a vexatious and oppressive manner. As previously mentioned, the decision in the principal judgment that the proceeding should be stopped against the first defendant under s 73(2) of the Act is not the same as a finding that a proceeding has been conducted as an abuse of process as a matter of the court's inherent jurisdiction. That applies to the conduct of the proceeding so far as the third defendant is concerned as well. In the circumstances it is neither necessary nor desirable to consider each of the points complained of or the relevant responses on either side further. The detailed submissions and lengthy material referred to on both sides showed a willingness to reagitate many old arguments better left unreviewed for the purposes of deciding the costs of the proceeding.
[33] Second, a similar consideration applies to the relevance of the third defendant's offer to compromise dated 28 November 2013. That letter contended that the plaintiff did not have a cause of action against the third defendant. The principal judgement found that the plaintiff does not have a cause of action for damages for breach of contract against the third defendant. However, at the time of the offer to compromise on 28 November 2013, that was not the only basis for the plaintiff to have brought or continued the proceeding against the third defendant. At that time, the third defendant remained a member of the first defendant and the management committee, so it was not clear then that no order could be made against her as a contradictor to bind her to a declaration or possible injunction that might be made in aid of the plaintiff's alleged rights against the first defendant.
[25]
[1]Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc[2022] QSC 82.
[6] The third defendant's application decided by the principal judgment sought alternative relief for summary judgment or for an order that the claim and statement of claim be struck out as against the third defendant or that paragraphs of the claim be struck out so far as they extended to the third defendant. It sought an order that the plaintiff pay the costs of the third defendant of the application on the indemnity basis and any other order considered appropriate by the Court.
[7] Because the orders made by the principal judgment effectively brought an end to the proceeding as between the plaintiff and the first defendant and third defendant respectively, the question of costs of the proceeding (in addition to the question of costs of the application) is appropriately dealt with under the power to do so because it has become unnecessary to continue the proceeding other than for deciding who is to pay the costs of the proceeding.[8]
[15] The contention that the plaintiff conducted the application and the proceeding as a whole unreasonably was supported by submissions that the plaintiff has:
[21] Lastly, the first defendant relies on the plaintiff's motivation for continuing the proceeding other than for the purpose of vindicating his rights.[12] In addition to the matter referred to in the principal judgment at [72], the first defendant relies on the plaintiff's failure to bring his claim to finality and his continued preparedness under the privilege of Court proceedings to make baseless allegations as previously submitted. However, the Court was not prepared to draw the inference in the principal judgment that the plaintiff had the relevant ulterior motive or collateral purpose,[13] and it would set that decision at nought to make the contrary finding for the purposes of deciding the question of costs. The submission that it should do so should be rejected.
[22] The plaintiff submits that although the general rule about costs is that costs follow the event, he should be ordered to pay only one quarter of the first defendant's costs for the application and no order for costs of the proceeding should be made.
[23] As for the costs of the application, the plaintiff submits that the first defendant succeeded on only one of the grounds alternatively advanced as the basis for the application and therefore should be treated as having failed on the other grounds. I do not agree. The question that was argued in substance was whether an order should be made under s 73(2) of the Act. That was the ground on which the first defendant succeeded. In any event, it does not follow that a party who succeeds on one of several bases will necessarily be limited to a proportion of the costs incurred to obtain the order applied for. In the present case, there were no substantial costs wasted by the alternative grounds of the application that became unnecessary to decide.
[24] As to the costs of the proceeding, the plaintiff contends that the order for a permanent stay does not have the effect of resolving the proceeding and that therefore those costs remain unresolved and cannot be ordered. Again, I do not agree for the reason that the order for a permanent stay makes it unnecessary to continue the proceeding other than for deciding who is to pay the costs and the Court may in those circumstances order a party to the proceeding to pay the costs by an order that the Court considers just.[14]
[25] The relevant principles in such a case were not dealt with in the parties' submissions.[15] However, in my view, the factors in the present proceeding that led to the order made in the principal judgment under s 73 of the Act are relevant,[16] by analogy, to the factors that may lead to a proceeding being dismissed or stayed as an abuse of process because of delay or lack of prospects or other features.[17]
[26] In the present case, those factors also inform the exercise of the discretionary power to award costs of the proceeding upon the making of an order for a permanent stay in favour of the first defendant, under r 685(1) of the UCPR.
[27] In the result, the order that should be made is that the plaintiff pay the first defendant's costs of the application and costs of the proceeding.
[34] In my view, the waste of costs in this proceeding as between the plaintiff and third defendant is lamentable. But the principal decision which gives rise to the costs orders sought of the application and of the proceeding did not engage in a broad ranging review of the plaintiff's conduct of the proceeding so as to justify an order that the costs be assessed on the indemnity basis.
[35] Instead, the principal decision as between the plaintiff and the third defendant warrants an order that the plaintiff pay the third defendant's costs of the application for summary judgment and of the proceeding on the basis that costs should follow the event, because the plaintiff, at the time of the decision, did not have a real prospect of success on any of the remaining subjects of claim against the third defendant. It does not require an order that the costs should be assessed on the indemnity basis and in the circumstances, in my view, that order should not be made.