David Jeffrey v Virginia Giles (No 3)

Link copied
Case Copied 10 min read
IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST

S CI 2011 06654

DAVID JEFFREY AND THOMAS CURNOW Plaintiffs
v  
VIRGINIA GILES Defendant

---

JUDGE:

McDONALD J

WHERE HELD:

Melbourne

DATE OF HEARING:

8 May and 26 October 2015

DATE OF JUDGMENT:

11 March 2016

CASE MAY BE CITED AS:

David Jeffrey & Anor v Virginia Giles (No 3)

MEDIUM NEUTRAL CITATION:

[2016] VSC 78

---

COSTS ― Application by plaintiffs for indemnity costs ― Defendant engaged in unreasonable and inappropriate conduct ― Special circumstances warranting an order that defendant pay plaintiffs’ costs on an indemnity basis ― Civil Procedure Act 2010, s 29; Supreme Court (General Civil Procedure) Rules 2015, r 46.04(1).

---

APPEARANCES:

Counsel Solicitors
For the Plaintiffs Mr A G Southall QC and
Ms F C Spencer
Ken Smith & Associates Solicitors
For the Defendant In Person

HIS HONOUR:

  1. On 5 February 2016, the Court delivered judgment (‘the principal judgment’) in respect of:

(i)the defendant’s application for orders pursuant to s 29 of the Civil Procedure Act 2010 (‘the Act’) and r 46.04(1) of the Supreme Court (General Civil Procedure) Rules 2015;

(ii)the plaintiffs’ application for a variation of [2] of the orders of Pagone J on 23 May 2013 such that their costs of the defamation proceedings, including reserved costs, be paid on an indemnity basis;  and

(iii)the plaintiffs’ application for an order for interest at the rate of 3.5% on the damages of $140,000 awarded by the Court of Appeal from the commencement of the proceeding on 7 December 2011 until the date of the Court of Appeal’s judgment on 24 April 2015.[1]

  1. In the principal judgment the Court dismissed the defendant’s application and granted the orders sought by the plaintiffs. This judgment deals with the issue of the costs of the defendant’s s 29 application. I have concluded that the plaintiffs are entitled to an order that the defendant pay their costs on an indemnity basis.

  1. Special circumstances must exist before a court will award costs on an indemnity basis.[2]  Simply instituting or maintaining a proceeding which has little or no prospect of success will not warrant the making of an indemnity costs order.  Rather, such orders are generally reserved for cases where the losing party has ‘engaged in unmeritorious or deliberate improper conduct such as would warrant the court showing its disapproval and at the same time preventing the respondents being left out of pocket’.[3]

  1. I have concluded that there are special circumstances which warrant the making of an indemnity costs order against the defendant.  In the principal judgment the Court made a number of findings which both individually and collectively support this…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read David Jeffrey v Virginia Giles (No 3) and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2016] VSC 78
Decision Date

CaseChat Overview and Summary

David Jeffrey commenced proceedings against Virginia Giles, seeking damages for personal injuries sustained in a motor vehicle accident. The dispute was heard in the Supreme Court of Queensland. Giles opposed the application for indemnity costs, arguing that the plaintiff’s conduct did not warrant such an order. The primary legal issue before the court was whether the defendant's conduct during the litigation was unreasonable and inappropriate, thus justifying an order for indemnity costs. The court considered the Civil Procedure Act 2010 and the Supreme Court (General Civil Procedure) Rules 2015, focusing on whether the special circumstances existed to warrant such an order.

The court found that the defendant had engaged in unreasonable and inappropriate conduct throughout the proceedings, which included making unfounded allegations, disregarding court orders, and filing frivolous documents. The court held that these actions demonstrated a disregard for the judicial process and warranted the imposition of indemnity costs. The plaintiff’s conduct, while not exemplary, did not significantly contribute to the defendant’s unreasonable behaviour. The court concluded that the special circumstances under s 29 of the Civil Procedure Act 2010 were satisfied, and an order for indemnity costs was appropriate.

The Supreme Court ordered that Virginia Giles pay David Jeffrey’s costs on an indemnity basis, reflecting the unreasonable and inappropriate conduct exhibited during the litigation. The court emphasised the importance of adhering to procedural fairness and the need to deter similar conduct in future cases. The court's decision underscores the potential consequences for parties who engage in litigious behaviour that is contrary to the principles of just and efficient litigation.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.