Campbell v Blackshaw (No 2)

[2019] ACTCA 28

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

Campbell v Blackshaw (No 2)

Citation:

[2019] ACTCA 28

Hearing Date:

Determined on the papers

DecisionDate:

9 October 2019

Before:

Burns, Elkaim and Loukas-Karlsson JJ

Decision:

The application for indemnity costs is dismissed.

Catchwords:

PRACTICE AND PROCEDURE – COSTS– Application for indemnity costs following appeal – where alleged hopeless case – where alleged delay, non-compliance and abuse of process by unsuccessful party – whether indemnity costs warranted

Legislation Cited:

Court Procedures Act 2004 (ACT) s 5A

Court Procedures Rules 2006 (ACT) r 1721

Cases Cited:

Beagle v Australian Capital Territory and Southern New South Wales Rugby Union Limited (No 2) [2017] ACTCA 40

Campbell v Blackshaw [2018] ACTSC 39
Campbell v Blackshaw [2019] ACTCA 1
Canberra Data Centres Pty Limited v Vibe Constructions (ACT) Pty Ltd [2010] ACTSC 20; 4 ACTLR 114
House v King (1936) 55 CLR 499
Huntsman Chemical Company Australia Ltd v International Pools Australia Ltd (1995) 36 NSWLR 242
Lenox Hewitt v Queensland Newspapers Pty Limited [1996] ACTSC 78
Lewis v Australian Capital Territory (No 2) [2015] ACTSC 343
Muscat v Haider (No 2) [2015] ACTSC 349
Northern Territory v Sangare [2019] HCA 25; 93 ALJR 959
Re SCA Properties Pty Ltd (in liq) [1999] QSC 180; 17 ACLC 1611

Parties:

Maryanne Campbell (Appellant)

Adam Blackshaw (First Respondent)

Robyn Evans (Second Respondent)

Representation:

Counsel

P Christensen (Appellant)

A Twigg (Respondents)

Solicitors

Snedden Hall & Gallop Lawyers (Respondents)

File Numbers:

ACTCA 17 of 2018; 18 of 2018

THE COURT:

Background

1. On 14 February 2019, the Court delivered its decision in this matter, dismissing two concurrent appeals, originally arising from decisions by the ACT Civil and Administrative Tribunal (ACAT): Campbell v Blackshaw [2019] ACTCA 1 (the ‘Appeal Decision’). The relevant factual background is set out in the Appeal Decision. The following orders were made:

(a)each appeal is dismissed;

(b)the appellant pay the respondent’s costs; and

(c)any application relating to a special order concerning costs be filed and served within 21 days.

1. On 5 March 2019, the First and Second Respondents (herein, the ‘Costs Applicants’) filed an application that the Appellant (herein, the ‘Costs Respondent’) pay costs on an indemnity basis.

Power to make orders for costs

1. In Beagle v Australian Capital Territory and Southern New South Wales Rugby Union Limited (No 2) [2017] ACTCA 40, the Court noted the following with respect to the Court’s costs discretion at [8]:

It has been noted by previous Courts of Appeal that:

-Part 2.17 of the Court Procedures Rules 2006 (ACT) applies to costs in proceedings in the Supreme Court of the ACT, and includes r 1721 which states that costs are at the discretion of the Court, and

-Rule 1721 applies, with necessary changes, to appellate proceedings which are civil proceedings (r 5001(2) and (3)).

1. Rule 1721 of the Court Procedures Rules 2006 (ACT) provides:

Costs—general rule

(1) The costs of a proceeding or of an application in a proceeding…