Herdy v Targato (No 2) - [2019] QDC 50

DISTRICT COURT OF QUEENSLAND

CITATION:

Herdy v Targato (No 2) [2019] QDC 50

PARTIES:

MONIQUE JILLIAN NATALIE HERDY

(Applicant)

v

CARLY TARGATO

(Respondent)

FILE NO:

D 214 of 2018

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Maroochydore District Court

DELIVERED ON:

15 April 2019

DELIVERED AT:

Maroochydore

HEARING DATE:

Heard on the papers (last submissions received 12 April 2019)

JUDGE:

Long SC DCJ

ORDER:

The Applicant is to pay the Respondent’s costs of the application, as agreed or to be assessed on the standard basis.

CATCHWORDS:

DISPUTE RESOLUTION & CIVIL PROCEDURE – COSTS – where the applicant’s application was dismissed – where the respondent sought costs on indemnity basis – whether respondent entitled to costs on indemnity basis

LEGISLATION:

Limitation of Actions Act 1974, s 32A

CASES:

Barrett v TCN Channel Nine Pty Ltd [2017] NSWCA 304
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Mowen v The Morning Bulletin/APN & Ors [2012] QSC 194
Mowen v The Morning Bulletin/APN & Ors [2013] QCA 36
Schache v GP No.1 Pty Ltd [2012] QCA 233

State of Queensland v O’Keefe [2016] QCA 135

COUNSEL:

M White for the applicant

G Barr for the respondent

SOLICITORS:

Butler McDermott for the applicant

Brennans Solicitors for the respondent

On 28 March 2019 the court dismissed the application for orders pursuant to s 32A of the Limitation of Actions Act 1974, to extend the time limit within which the Applicant could commence an action for damages for defamation.

The Respondent seeks an order that the Applicant pay the Respondent’s costs of the application and submits those costs should be assessed on the indemnity basis.

The Respondent has been wholly successful in her defence of the application and the Applicant does not contest that costs should follow the event, nor suggest that there is any basis for the Court to depart from the general rule and order otherwise. However, it is contended that the circumstances do not warrant the exceptional step that the costs be ordered to be recovered on the indemnity basis.

The Respondent points to the essential findings of the Court that:

(a) The Applicant has not satisfied the court that it was not reasonable for her to have commenced her proposed action for defamation within the period of one year after the publication;[1] and

(b) Even if an extension of time was to be given, in any event it would not have been appropriate to have granted any extension to the Applicant that may have allowed her to commence the proceeding.[2]

[1]Respondent’s written submissions at [3(a)]; Herdy v Targato [2019] QDC 39 at [25].

[2]Respondent’s written submissions at [3(b)]; Herdy v Targato [2019] QDC 39 at [36].

And also that in dismissing the application the Court has found:

(a) There was no objective justification for the contention by the Applicant that she expected her claim against the Respondent would be vindicated by the outcome of the Australian Health Practitioner Regulation Agency enquiry;[3]
[3]Respondent’s written submissions at [6(a)]; Herdy v Targato

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 Herdy v Targato (No 2)

Details

AGLC: Herdy v Targato (No 2) [2019] QDC 50
Case: [2019] QDC 50
Decision Date: 15 April 2019

CaseChat Overview and Summary

In the matter of Herdy v Targato, the applicant sought to challenge a previous court decision, but the court dismissed the application. The respondent, Targato, then applied for costs on an indemnity basis, arguing that the application was without merit and that it should be compensated for the additional expenses incurred due to the applicant's actions. The case was heard in a court that had jurisdiction over civil matters, where the primary concern was to determine the appropriateness of the indemnity costs sought by the respondent.

The court was required to address two main issues. First, whether the respondent was entitled to costs on an indemnity basis, and second, if so, to what extent the respondent's costs should be assessed. The court examined the circumstances under which indemnity costs could be awarded, taking into account the principles of fairness and the conduct of both parties during the litigation process.

The court found that while the application was ultimately unsuccessful, the circumstances did not warrant an indemnity costs order. It was noted that the application had some arguable merit, and the court did not find any egregious conduct on the part of the applicant that would justify such a severe penalty. Therefore, the court decided that the respondent was entitled to costs, but not on an indemnity basis. Instead, the court ordered that the applicant would pay the respondent's costs of the application, as agreed or to be assessed on the standard basis.

The court’s decision was based on a balanced consideration of the factors relevant to awarding costs, including the merits of the application, the conduct of the parties, and the principles of fairness in litigation. The court's ruling ensured that the respondent was compensated for the expenses incurred due to the unsuccessful application, but did not impose a disproportionately severe penalty on the applicant.

Orders

Orders of the court

The Applicant is to pay the Respondent’s costs of the application, as agreed or to be assessed on the standard basis.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Herdy v Targato (No 2) [2019] QDC 50
PARTIES:	MONIQUE JILLIAN NATALIE HERDY (Applicant) v CARLY TARGATO (Respondent)
FILE NO:	D 214 of 2018
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	Maroochydore District Court
DELIVERED ON:	15 April 2019
DELIVERED AT:	Maroochydore
HEARING DATE:	Heard on the papers (last submissions received 12 April 2019)
JUDGE:	Long SC DCJ
ORDER:	The Applicant is to pay the Respondent’s costs of the application, as agreed or to be assessed on the standard basis.
CATCHWORDS:	DISPUTE RESOLUTION & CIVIL PROCEDURE – COSTS – where the applicant’s application was dismissed – where the respondent sought costs on indemnity basis – whether respondent entitled to costs on indemnity basis
LEGISLATION:	Limitation of Actions Act 1974, s 32A
CASES:	Barrett v TCN Channel Nine Pty Ltd [2017] NSWCA 304 Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 Mowen v The Morning Bulletin/APN & Ors [2012] QSC 194 Mowen v The Morning Bulletin/APN & Ors [2013] QCA 36 Schache v GP No.1 Pty Ltd [2012] QCA 233 State of Queensland v O’Keefe [2016] QCA 135
COUNSEL:	M White for the applicant G Barr for the respondent
SOLICITORS:	Butler McDermott for the applicant Brennans Solicitors for the respondent