Thorne Developments Pty Ltd v Laird [2022] QSC 139

"An order that the Defendants, or the one or other of them, pay to the Plaintiff, costs of and incidental to the trial of the separate issue ordered by Davis J on 18 October 2021, including reserved costs, on the standard basis, as agreed or assessed."

• [5] On 30 June 2022, the solicitors for the defendants provided written submissions. In these, the defendants accepted that costs should follow the event in accordance with r 681, and that the plaintiff had been "largely successful in relation to the relief sought on the issues for determination on the separate issue."
• [6] The defendants also submitted that "as the plaintiff has been self-represented at all time material to the hearing of the separate issue", there should be no order as to costs.
• [7] In Cachia v Hanes, the High Court observed:

"It has not been doubted since 1278 when the Statute of Gloucester introduced the notion of costs to the common law that costs are awarded by way of indemnity (or more accurately, partial indemnity) for professional legal costs actually incurred in the conduct of litigation. They were never intended to be comprehensive compensation for any loss suffered by a litigant. As Coke observed of the Statute of Gloucester, the costs which might be awarded to a litigant extended to the legal costs of the suit 'but not to the costs and expenses of his travell and losse of time'."[1]

• [8] The plaintiff did not retain counsel or solicitors to represent it at the hearing. It sought and obtained leave to be represented by a director. It incurred no professional legal costs in the conduct of this part of the proceeding. If awarded costs, the plaintiff might be allowed to recover any court filing or hearing fees it has paid.[2] However, the plaintiff applied for and obtained an exemption from paying the Court any setting down or hearing fees before this separate hearing commenced.
• [9] It follows that a costs order might invite disputation between the parties about whether the plaintiff could recover from the defendants sums that are trivial in comparison with the principal sum claimed. That should be avoided.
• [10] In the exercise of the broad discretion on matters of costs, I decline to order the defendants to pay the plaintiff's costs of the determination of the separate issues, including the costs of the parties' respective written submissions on costs. The appropriate Order is "no order as to costs". This has the effect that each party is to bear its own costs of the part of the proceeding to which the Order relates, regardless of any costs order the Court may make at the end of the proceeding.

[1] [1994] 179 CLR 403, 410-411 (Mason CJ, Brennan, Deane, Dawson and McHugh JJ) (footnotes omitted). The Statute of Gloucester is 1278 (UK) 6 Edw. I c. 1. The passage from Coke is at Second part of the Institutes of the Laws of England (1797), p.288.

[2] See, e.g., George v Fletcher (No 2) [2010] FCAFC 71, [17] (Ryan, Marshall and Logan JJ).