Express Cargo Services Pty Ltd v Mysko (No 2)

In the matter of Express Cargo Services Pty Ltd v Mysko (No 2), Express Cargo Services Pty Ltd (ECS) sought indemnity costs against the respondent, Mysko, following the conclusion of litigation. The dispute centred around allegations of improper conduct and communications made by Mysko, who was self-represented throughout the proceedings. ECS argued that Mysko's litigation conduct was unreasonable, her case was hopeless, and she unreasonably refused a compromise offer. The primary legal issues before the court were whether Mysko's conduct during the litigation warranted indemnity costs and whether her refusal of a compromise offer justified such an award.

The court found that Mysko's conduct in the litigation was unreasonable, as evidenced by the numerous lengthy, repetitive, and largely irrelevant emails she sent to ECS's legal representatives. These communications, many of which contained allegations of harassment and threats to report ECS's legal representatives, demonstrated a motive of anger and revenge rather than a legitimate attempt to defend her position. The court held that Mysko's conduct was in breach of the overarching obligations under the Uniform Civil Rules 2020 (SA). Furthermore, the court concluded that Mysko should have been aware that her case had no reasonable prospects of success, given the strength of ECS's allegations and the evidence presented. Additionally, Mysko's refusal to accept ECS's offer of compromise, which would have resulted in the dismissal of the application without costs, was deemed unreasonable. Consequently, the court granted ECS indemnity costs for certain costs thrown away and for responding to Mysko's email communications, while ordering the remainder of the costs on a standard costs basis.

The court ordered that Mysko pay ECS's costs incurred due to the adjournment of the trial on 21 December 2021 and the costs of responding to Mysko's email communications from 11 October 2021 on an indemnity basis. Additionally, Mysko was ordered to pay the remaining costs of the proceedings on a standard costs basis. The court emphasised that while Mysko's self-representation did not excuse her from the obligations of civil litigation, it did mitigate the harshness of the costs order.