Campbell v Blackshaw (No 2)
[2019] ACTCA 28
•9 October 2019
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 |
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
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.
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
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)).
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 are in the discretion of the court.
(2) The costs of the proceeding include the costs of an application in the proceeding, unless the court otherwise orders.
Note 1
Application in a proceeding is defined in r 6006.
Note 2
Pt 6.2 (Applications in proceedings) applies to an application for an order otherwise ordering.
Submissions of the Costs Applicants
In their application of 5 March 2019, the Costs Applicants rely on the following grounds for their application, as detailed further in their submissions dated 21 May 2019:
(a)the appeal was a ‘hopeless’ case;
(b)there was excessive delay and prolongation by the Costs Respondent;
(c)there was non-compliance by the Costs Respondent with orders of ACAT; and
(d)the Costs Respondent engaged in an abuse of process.
Hopeless case
It was submitted that, properly advised, the Costs Respondent should have known that she had no chance of success in either the Supreme Court or Court of Appeal proceedings and thus had a hopeless case in each (citing Lenox Hewitt v Queensland Newspapers Pty Limited [1996] ACTSC 78). In particular, the Costs Applicants drew the Court’s attention to a number of findings both in the decision of Mossop J in Campbell v Blackshaw [2018] ACTSC 39 (the ‘Supreme Court Decision’) and in the Appeal Decision (collated in Tables A and B annexed to the Costs Applicants’ submissions, respectively) which it was argued demonstrated the flawed nature of the Costs Respondent’s case in each proceeding. Most significantly, the Costs Applicants highlighted that, in respect of the Supreme Court proceeding, the relief of Presidential Member McCarthy in the ACAT proceeding was based on two grounds, one of which was not put in issue at all by the Costs Respondent. In respect of the appeal proceeding it was submitted the Costs Respondent did not plead or demonstrate any error of the kind referred to in House v King (1936) 55 CLR 499, or other errors on the part of Mossop J.
Delay, non-compliance and abuse of process
In support of the grounds of delay, non-compliance and abuse of process, the Costs Applicants relied in particular on the evidence contained in the affidavits of Adam Blackshaw affirmed on 4 March 2019 and Allistar Twigg affirmed on 4 March 2019 (the relevant supporting evidence collated in Tables C and D annexed to the Costs Applicant’s submissions, respectively). The period of time covered by these events and communications ranges from 2012 to 2019, and it was submitted the Costs Respondent’s intentions and behaviour during the proceedings can be informed by both prospectant and retrospectant evidence contained therein. With respect to prospectant evidence in particular, the Costs Applicants highlighted one exchange which it was said clearly demonstrated an intention to cause delay and financial damage (Item 70 of Table C):
The Appellant said to the Second Respondent (Robyn Evans) in an aggressive tone, ‘You’re dealing with the big boys now. You’re going to have to employ a lawyer. Paying back the court for the rest of your lives. What a stupid way to live’. She then yelled, ‘I’m taking back my rights.
The Costs Applicants also submitted that the matters outlined in Tables C and D evidence a failure to comply with, and assist in the promotion of, s 5A of the Court Procedures Act 2004 (ACT) (CPA).
Submissions of the Costs Respondent
In the Costs Respondent’s submissions, dated 11 July 2019, it was submitted that any order as to costs must be confined to those arising from the appeal proceedings, the Costs Applicants having already had an opportunity to make an application with respect to the Supreme Court proceedings: Supreme Court Decision at [107].
In addition, the Costs Respondent rejected the proposition that statements alleged to have been made prior to the appeal proceedings, and conduct of a subsequent ACAT proceeding, were in any way relevant to the issue of indemnity costs in the Court of Appeal.
Moreover, it was noted that no indication was given to the Costs Respondent prior to the Appeal Decision that indemnity costs would be sought.
Hopeless case
In the Costs Respondent’s submission, the mere fact that a ground fails is insufficient to establish a hopeless case. Moreover, the Costs Respondent referred to findings by Mossop J in the Supreme Court Decision that, in respect of the nuisance matter, one ground had “some merit” (at [58]) and with respect to the fence matter the Costs Respondent’s position was “arguable…[but] weak” (at [93]). In addition, it was submitted the Supreme Court Decision implied the Costs Respondent could have reopened the ACAT case and further that the Costs Respondent exercised restraint in not arguing further grounds.
Delay, non-compliance and abuse of process
The Costs Respondent rejected the submission that there was any delay in the Court of Appeal. While it was accepted that changing of solicitors in the preceding period caused “some minor delays” it was submitted that the costs of such would be covered by a general order for costs. With respect to the CPA, it was submitted the Costs Respondent simply pursued her legal rights, which s 5A does not require parties to abandon.
Costs Applicants’ submissions in reply
In addition to the matters raised in the original submissions, the Costs Applicants submitted further in reply, in written submissions dated 17 July 2019, that:
(a)the Costs Applicants rely on the statement of Refshauge J in Muscat v Haider (No 2) [2015] ACTSC 349 at [10] for the ability to claim costs of the Supreme Court proceeding;
(b)the Costs Respondent cannot use submissions to contest the veracity of the statement at [7] above;
(c)there is authority to support the proposition that a lack of indication that indemnity costs would be sought is not a mandatory requirement (citing Canberra Data Centres Pty Limited v Vibe Constructions (ACT) Pty Ltd [2010] ACTSC 20; 4 ACTLR 114 cf: Huntsman Chemical Company Australia Ltd v International Pools Australia Ltd (1995) 36 NSWLR 242);
(d)the fact that the Costs Respondent could have put on further evidence in the ACAT proceeding cannot be used to show ACAT erred in law (reiterating the alternate ground submission referred to at [6] above); and
(e)with respect to s 5A of the CPA, the conclusion that the Costs Respondent was merely pursuing her rights ignores evidence of the allegedly detrimental manner in which this was done.
Consideration
It was accepted by the parties that the decision of Foster J in Lewis v Australian Capital Territory (No 2) [2015] ACTSC 343 was instructive with respect to the applicable legal principles and, in particular, the Costs Applicants’ distillation of the relevant circumstances warranting an indemnity costs order, namely:
(a)The making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud.
(b)Evidence of particular misconduct that causes loss of time to the Court and to other parties.
(c)The fact that the proceedings were commenced or continued for some ulterior motive or in wilful disregard of known facts or clearly established law.
(d)The making of allegations which ought never to have been made (hopeless case) or the undue prolongation of a case by groundless contentions.
(e)An imprudent refusal of an offer to compromise.
(f)Costs against a contemnor.
It was further accepted that Re SCA Properties Pty Ltd (in liq) [1999] QSC 180; 17 ACLC 1611 is relevant. The Costs Applicants highlighted the following from Ambrose J at [70]:
[W]here it appears that an action has been either commenced or continued in circumstances where the applicant properly advised should have known that he had no chance of success, the action may be presumed to have been commenced or continued for some ulterior motive or because of some wilful disregard of the known facts on the clearly established evidence. In some cases it is appropriate to make an order for indemnity costs to make it known that the court will not readily accept that its time and the successful litigant's money can be wasted on totally frivolous and thoroughly unjustified proceeding. If it appears it is not for the bona fide purpose of protecting and enforcing a legal right but to achieve an ulterior or extraneous purpose that in itself is justification for the making of an indemnity order.
As the High Court recently restated in Northern Territory v Sangare [2019] HCA 25; 93 ALJR 959 at [24]:
It is well established that the power to award costs is a discretionary power, but that it is a power that must be exercised judicially, by reference only to considerations relevant to its exercise and upon facts connected with or leading up to the litigation. While the width of the discretion "cannot be narrowed by a legal rule devised by the court to control its exercise", the formulation of principles according to which the discretion should be exercised does not "constitute a fetter upon the discretion not intended by the legislature". Rather, the formulation of principles to guide the exercise of the discretion avoids arbitrariness and serves the need for consistency that is an essential aspect of the exercise of judicial power.
(citations omitted).
In our view, applying these principles, it has not been established that an indemnity costs order is warranted. None of the bases for an indemnity costs order have been established.
As to the conversation referred to above at [7], it should be noted that the conversation is disputed and in any event, even if it were accepted, does not provide cogent evidence of an intent to cause delay and financial damage.
Costs are at the discretion of the Court. While none of the grounds could be said to be strong, it could not be said this case was “hopeless” as such.
The appeal was dismissed. The application for indemnity costs is dismissed.
Order
The application for indemnity costs is dismissed.
| I certify that the preceding twenty-two [22] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Justices Burns, Elkaim and Loukas-Karlsson. Associate: Date: |
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