Frippery Pty Ltd v Booth - [2008] FCA 514

FEDERAL COURT OF AUSTRALIA
Frippery Pty Ltd v Booth [2008] FCA 514
COSTS – notice of discontinuance – application by respondents that costs be awarded on indemnity basis – whether circumstances give rise to awarding of costs on basis other than party-party basis – whether justice of the case requires costs be paid on indemnity basis
Held: Justice of the case requires respondents’ costs be awarded on indemnity basis. In view of known facts and established law applicants’ claims had no chance of success. Applicants had legal representation throughout proceedings. The matter had been fully litigated in the State courts. Applicants’ claims were of vexatious and frivolous nature. Respondents have incurred costs which ought not to have been incurred.
FRIPPERY PTY LTD, MERVYN MEYER THOMAS and PAMELA ANN THOMAS v CAROL JEANNETTE BOOTH, ENVIRONMENTAL DEFENDERS OFFICE (QLD) INC, JO-ANNE BRAGG and LARISSA WATERS
QUD 380 OF 2007
COLLIER J
16 APRIL 2008
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QUD 380 OF 2007

BETWEEN:

FRIPPERY PTY LTD
First Applicant

MERVYN MEYER THOMAS
Second Applicant

PAMELA ANN THOMAS
Third Applicant

AND:

CAROL JEANNETTE BOOTH
First Respondent

ENVIRONMENTAL DEFENDERS OFFICE (QLD) INC
Second Respondent

JO-ANNE BRAGG
Third Respondent

LARISSA WATERS
Fourth Respondent

JUDGE:

COLLIER J

DATE OF ORDER:

16 APRIL 2008

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.The applicants be granted leave to discontinue the proceedings in QUD 380 of 2007 pursuant to O 22 r 2 Federal Court Rules.
2.The applicants pay the costs of the second, third and fourth respondents of the proceedings up to and including 16 April 2008 such costs being assessed on an indemnity basis.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QUD 380 OF 2007

BETWEEN:

FRIPPERY PTY LTD
First Applicant

MERVYN MEYER THOMAS
Second Applicant

PAMELA ANN THOMAS
Third Applicant

AND:

CAROL JEANNETTE BOOTH
First Respondent

ENVIRONMENTAL DEFENDERS OFFICE (QLD) INC
Second Respondent

JO-ANNE BRAGG
Third Respondent

LARISSA WATERS
Fourth Respondent

JUDGE:

COLLIER J

DATE:

16 APRIL 2008

PLACE:

BRISBANE

REASONS FOR JUDGMENT

This morning in Court Mr Kelso for the applicants sought to file a notice of discontinuance in this matter pursuant to O 22 r 2 Federal Court Rules. The application was not specifically opposed by the respondents, however it was also not by consent. In the circumstances I gave leave for the proceedings to be discontinued, subject to resolution of the issue of costs.
Mr Kelso conceded this morning that, as a general proposition, costs follow the event, and that the applicants in discontinuing the proceedings would be liable for the costs of the respondents. Dr McGrath for the second, third and fourth respondents has however submitted that the costs should be awarded on an indemnity basis.
In relation to this matter I note that it is not in dispute that the first respondent, Ms Booth, has not been served in these proceedings. Accordingly Ms Booth has…

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.

Continue reading Frippery Pty Ltd v Booth

Details

AGLC: Frippery Pty Ltd v Booth [2008] FCA 514
Case: [2008] FCA 514
Decision Date: 16 April 2008

CaseChat Overview and Summary

In the Federal Court of Australia, Frippery Pty Ltd filed proceedings against Booth and others, which the respondents sought to have summarily dismissed. The respondents argued that the proceedings were both frivolous and vexatious, and constituted an abuse of the court's process. This was due to the matter involving issues that had already been determined in previous litigation in the Queensland Planning and Environment Court and the Queensland Court of Appeal, as well as the lack of any real prospect of success in the current proceedings. Notably, the applicants had made claims regarding alleged criminal offences and sought orders for certiorari and prohibition, despite lacking jurisdiction and having no real foundation for these claims.

The court had to decide whether the proceedings constituted an abuse of process and were frivolous and vexatious. The respondents contended that the claims were res judicata or subject to issue estoppel or Anshun estoppel, and that there was no real question of law or fact to be determined. They further argued that the proceedings were brought to harass and intimidate the respondents. The applicants, on the other hand, claimed that they were acting as town agents and had attempted to resolve the matter before the hearing.

The court found that the proceedings were indeed an abuse of process and were frivolous and vexatious. The applicants' claims lacked any arguable foundation and had no prospects of success, particularly regarding the alleged criminal liability of the respondents for actions taken in their professional capacity. Additionally, the court observed that the timing of the proceedings, coinciding with the reserved judgment in the Queensland Planning and Environment Court, suggested an intent to harass and intimidate. Consequently, the court granted the applicants leave to discontinue the proceedings and ordered them to pay the respondents' costs on an indemnity basis.

The court's final orders included granting leave for the applicants to discontinue the proceedings and directing them to pay the respondents' costs up to and including 16 April 2008, assessed on an indemnity basis.

Orders

Orders of the court

1. The applicants be granted leave to discontinue the proceedings in QUD 380 of 2007 pursuant to O 22 r 2 Federal Court Rules.

2. The applicants pay the costs of the second, third and fourth respondents of the proceedings up to and including 16 April 2008 such costs being assessed on an indemnity basis.

Background

Background to the litigation

Further, I understand that the respondents were first made aware of the applicants’ notice of discontinuance this morning immediately prior to the hearing.Background This matter was listed for hearing today in relation to a notice of motion filed by the second, third and fourth respondents seeking summary dismissal of the proceedings on the basis that:1.The proceeding was frivolous and vexatious; and2.The proceeding was an abuse of the process of the Court. It is not in dispute that the parties have been involved in extended litigation in the Queensland Planning and Environment Court and the Court of Appeal in Queensland in relation to issues subsequently raised in the applicants’ statement of claim in the Federal Court of Australia. I note four relevant decisions: Booth v Frippery Pty Ltd [2005] QPEC 095, Booth v Frippery Pty Ltd [2006] 2 QdR 210, Booth v Frippery Pty Ltd [2007] QPEC 99 and Frippery Pty Ltd v Booth (unreported, Queensland Court of Appeal 123/08, 15 and 25 February 2008). In his written outline of argument, upon which he relied in Court this morning, Dr McGrath submitted in summary that:· The proceedings in this Court were an abuse of process as they involved matters that are res judicata or subject to issue estoppel or Anshun estoppel.· The proceedings in this Court were an abuse of process because they were frivolous and vexatious in the sense that there was no real question of law or fact to be determined, and the applicants had no real reasonable prospect of successfully prosecuting the proceeding. I note in particular claims by the applicants with respect to alleged criminal offences by the respondents pursuant to the Criminal Code 1995 (Cth), the Criminal Code (Qld) and the Summary Offences Act 1989 (Qld) (in relation to which this Court has no jurisdiction), and for orders for certiorari and prohibition despite the fact that the respondents against whom these orders were sought were not officers of the Commonwealth.· The proceedings in this Court were an abuse of process because they were frivolous with no arguable foundation and had no prospects of success. This was particularly the case in relation to the applicants’ claim that, by undertaking the normal work of solicitors for the first respondent in the Queensland Court proceedings, the second, third and fourth respondents were liable for criminal and civil sanctions.· The Court could infer that the proceedings were vexatious, in the sense that they were brought to harass and intimidate the first respondent and her solicitors at a time when judgment at the re-trial of the Queensland Planning and Environment Court proceedings was reserved. Mr Kelso for the applicants submitted that his instructing solicitors were acting as town agents and had only been instructed last week; and that there had been some attempts by the applicants’ solicitors to resolve the proceedings before Court today. I understand that there is no longer any claim by the applicants with respect to alleged criminal conduct by the second, third and fourth respondents.Costs

Evidence

Evidence Before The Court

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Decision

Reasons for decision

COLLIER J

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Ratio Decidendi

Legal Principle Established

Established by: COLLIER J

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IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 380 OF 2007

JUDGE:	COLLIER J
DATE OF ORDER:	16 APRIL 2008
WHERE MADE:	BRISBANE

JUDGE:	COLLIER J
DATE:	16 APRIL 2008
PLACE:	BRISBANE