David Jeffrey v Virginia Giles (No 3) - [2016] VSC 78

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

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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

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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).

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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:

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]David Jeffrey & Anor v Virigina Giles (No 2) [2016] VSC 2.

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.

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]
[2]Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189, [7]; Legal Services Commissioner v Bone [2014] QCA 179, [71].
[3]Yara Australia Pty Ltd v Oswal (2013) 41 VR 302, [57].

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] VSC 78
Decision Date: 11 March 2016

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