Brimblecombe v Walker (No 2)

[2015] QDC 54

DISTRICT COURT OF QUEENSLAND

CITATION:

Brimblecombe v Walker & Anor (No 2) [2015] QDC 54

PARTIES:

RICHARD BRIMBLECOMBE
(plaintiff)

v

DOUGALD WALKER
(first defendant)

and

ABRE DE VILLIERS
(second defendant)

FILE NO:

4231 of 2014

DIVISION:

Trial (Civil)

PROCEEDING:

Claim

ORIGINATING COURT:

Brisbane District Court

DELIVERED ON:

16 March 2015

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Dorney QC, DCJ

ORDER:

1.     The defendants pay the plaintiff’s costs of the application.

CATCHWORDS:

Costs

LEGISLATION CITED:

Uniform Civil Procedure Rules 1999, r 681(1)

CASES CITED:

Murdoch v Lake [2014] QCA 269

COUNSEL:

P J McCafferty for the first and second defendants (applicants)

M Martin QC for the plaintiff (respondent)

SOLICITORS:

Bennett and Philp Lawyers for the first defendant (applicant)

McBride Legal for the second defendant (applicant)

Mills Oakley for the plaintiff (respondent)

Introduction

1. On 24 February 2015, when ordering that the amended application be dismissed, I gave leave to both parties to file, and serve, successively, submissions on costs.  That has been done.

Defendants’ submissions

1. The defendants were the unsuccessful applicants.  They submit that the appropriate order is that the costs of the application be reserved to the trial judge.

1. That submission is based upon four grounds:

·      that the application was, in part, successful, because it was only during the course of the application that the plaintiff conceded that the original publication was, in fact, statute barred;

·      that the application was with merit, in particular with respect to the issue of whether the plaintiff consented to the republication sued upon;

·      that the only basis upon which the application was unsuccessful on the issue of the defence of consent was the result of a late filed affidavit on the day of hearing, which raised facts which were held to be properly the subject of evidence at trial; and

·      that, on the issue of the defence qualified privilege, it was not until oral submissions on the date of hearing that the plaintiff sought to raise the argument about alleged malice originally, and its effect on the republication.

Plaintiff’s submissions

1. In answer to the defendants’ submissions, the plaintiff contended:

·      that the application was wholly unsuccessful, rebutting, in particular, the alleged late concession by the plaintiff about the barring of the cause of action based on the original publication (which I dealt with in my Reasons);

·      that, as to the question of consent, the defendants were determined to agitate the question only after the plaintiff made an affidavit saying that he voted in favour of making the complaint to ASIC (being an affidavit sworn three days prior to the hearing) and that the further affidavit had clarified and expanded upon what had happened when the vote was taken;

·      that the question of consent was always something that required a trial; and

·      that there was always to be a factual enquiry with respect to the defence of qualified privilege (referring to paragraphs [43]-[46] of my Reasons).

Consideration

1. First, I see no particular reason why this matter of costs needs to be reserved.  I am aware of all the grounds that are relied upon by both sets of parties which are agitated in their submissions.  I am of the view that the trial judge, if any, would be in a no better position than I am on this score.  And it is not a question of awaiting factual findings at trial to be able to determine what different outcome might have been achieved here, with such additional facts.

1. Secondly, r 681(1) of the Uniform Civil Procedure Rules 1999 (“UCPR”) provides that costs of a proceeding, “including an application in a proceeding”, are in the discretion of the court but follow the event, unless the court orders otherwise.

1. As canvassed in Murdoch v Lake [2014] QCA 269, the “event” there referred to is to be determined by reference to “the events or issues, if more than one, arising in the proceedings” – but a party which has not been entirely successful is not “inevitably” or even, perhaps, “normally” deprived of some of its costs: at [20]-[21].

1. This application, as the Reasons show, involved some questions of some complexity and was agitated, on both sides, with very few, if any, concessions.

1. Accordingly, I viewed the application, in total, as an integrated application that sought to determine the whole of the proceeding in favour of the defendants.  To that extent, the defendants were unsuccessful.

1. Moreover, I am of the view that the circumstances of this application provide no reason why the discretion to be exercised as to the matter of costs should be not undertaken according to the overall outcome, especially where there is a clear rejection of the outcome the defendants sought.

1. As for the alleged lateness, I find that no party was disadvantaged by the way in which the issues arose and that both parties contested the application seeking, on the defendants’ part, the end of the proceeding and, on the plaintiff’s part, a trial of the proceeding on all contested issues.  On that, the plaintiff was entirely successful.

1. Accordingly, I intend, as I originally indicated in my Reasons, to order that the defendants pay the plaintiff’s costs of the application.