HKD v State of Queensland

[2025] QDC 174

DISTRICT COURT OF QUEENSLAND

CITATION:

HKD v State of Queensland [2025] QDC 174

PARTIES:

HKD
(plaintiff)

AND

STATE OF QUEENSLAND
(defendant)

FILE NO:

BD 1346/21

DIVISION:

Trial Division

PROCEEDING:

Civil

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

19 November 2025

DELIVERED AT:

Brisbane

HEARING DATE:

31 October 2025

JUDGE:

Rosengren DCJ

ORDERS:

1.   THE APPLICATION FOR SHINE LAWYERS TO PAY THE DEFENDANT’S COSTS ON THE INDEMNITY BASIS FROM 20 JULY 2023 OR 20 MAY 2024 IS DISMISSED.  

2.   THE DEFENDANT PAY SHINE LAWYERS’ COSTS OF THIS APPLICATION ON THE STANDARD BASIS. 

3.   THE PLAINTIFF PAY THE DEFENDANT’S COSTS OF THE PROCEEDING TO BE ASSESSED ON THE STANDARD BASIS UP TO 27 MARCH 2024 AND ON THE INDEMNITY BASIS FROM 28 MARCH 2024.  

4.   THE PLAINTIFF PAY THE DEFENDANT’S COSTS OF THIS APPLICATION ON THE STANDARD BASIS, EXCLUDING THOSE COSTS PAYABLE BY THE DEFENDANT AS REFERRED TO IN PARAGRAPH 2 ABOVE.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – OFFERS OF COMPROMISE – WHETHER UNREASOANBLE REFUSAL OF DEFENDANT’S MANDATORY FINAL OFFER PRIOR TO PROCEEDINGS BEING COMMENCED – ORDER FOR COSTS ON INDEMNITY BASIS – where consent judgment for the defendant – where it was submitted the plaintiff unreasonably subjected the defendant to proceedings and associated costs by not accepting the defendant’s mandatory offer made before proceedings were instituted – whether indemnity costs ought to be awarded

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – OFFERS OF COMPROMISE PURSUANT TO RULES  – REFUSAL OF DEFENDANT’S OFFER – ORDER FOR COSTS ON INDEMNITY BASIS – where consent judgment for the defendant – where, after proceedings were instituted the defendant offered to settle the proceedings pursuant to the Uniform Civil Proceedings Rules 1999 (Qld) – where the plaintiff did not accept the offer – whether an order pursuant to r 361A of the Uniform Civil Proceedings Rules 1999 (Qld) should be made

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – DEPARTING FROM GENERAL RULE – SOLICITORS – power to order solicitors to pay costs of proceedings – whether there was a failure to give reasonable or proper attention to the relevant facts, or other negligence or misconduct – whether the solicitors for the plaintiff ought to pay part of the costs of the proceeding

LEGISLATION:

Personal Injuries Proceedings Act 2002 (Qld), s 37(2)
Uniform Civil Procedure Rules 1999 (Qld), Chapter 9, Part 5, r 150(4), r 166, r 168, r 361, r 361A, r 681, r 690

CASES:

Balnaves v Smith [2012] QSC 408
Built Qld Pty Ltd v Pro-Invest Australian Hospitality Opportunity (ST) Pty Ltd (No 2) [2023] QCA 140
Collins v Metro North Hospital and Health Services & Ors [2023] QSC 194
De Sousa v Minister of State for Immigration, Local Government and Ethnic Affairs (1993) 41 FCR 544
Edwards v Edwards [1958] P 235
Etna v Arif [1999] VR 353
Flower v Hicks [2024] SASCA 126
Forge v Rewers (No 2) [2017] ACTSC 273
Loates v Loates (2000) 185 DLR (4^th) 525
Macteldir Pty Ltd v Dimovski (2005) 226 ALR 773
Martin v Harris [2010] FamCA 239
Melco Engineering Pty Ltd v Eriez Magnetics Pty Ltd [2007] QSC 198
Nominal Defendant v Cordin [2019] NSWCA 85
Orchard v South Eastern Electricity Board [1987] QB 565
Oshlack v Richmond River Council (1998) 193 CLR 72
Pollock v Thiess Pty Ltd  & Ors (No 3) [2014] QSC 121
Re Fogarty (No 2) (2007) 1 ACTLR 97
Reid v Hubbard (No 2) [2004] FCA 180
Ridehalgh v Horsefield [1994] Ch 205
Steindl Nominees Pty Ltd v Laghaifar [2003] 2 Qd R 683
Tarabay v Bechara [2010] NSWSC 202
White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1998) 156 ALR 169
Yates Property Corporation (in liq) v Boland (1998) 157 ALR 30

COUNSEL:

The plaintiff was self-represented
A Fraser KC for Shine Lawyers
B Charrington KC and S Gray for the defendant

SOLICITORS:

Shine Lawyers for Shine Lawyers
Crown Law for the defendant until 22 June 2025 and
MinterEllison from 23 June 2025

Introduction

1. The matter was a historical sexual abuse claim for personal injuries.  It was alleged that the plaintiff was sexually abused by an employee of the defendant while detained at the Brisbane Youth Detention Centre (‘the Detention Centre’) between August 2009 and February 2010 when he was approximately 15 years of age.   He was seeking damages for a psychiatric injury.  The plaintiff instructed Shine Lawyers to pursue his claim.  

2. The hearing of this matter was estimated to be 10 days and was scheduled to commence on Monday, 2 June 2025.  On the Thursday afternoon prior to this, the parties requested that the matter be mentioned, and the Court was informed that the parties had consented for there to be judgment for the defendant. 

3. This leaves the question of costs.  The defendant applies for its costs of the proceeding to be paid on the indemnity basis and that they be paid by Shine Lawyers from 20 July 2023, or alternatively 20 May 2024.   The issues to be determined are:

   (i)The effect of two offers made, one which was a pre-litigation mandatory final offer and the other made under the Uniform Civil Procedure Rules 1999 (‘the UCPRs’); and

   (ii)Whether Shine Lawyers’ conduct of the litigation has been so egregious to warrant a personal costs order.

4. The plaintiff was represented in the substantive litigation but was self-represented on this application.  Shine Lawyers were not a party to the proceedings as originally constituted.  However, they were represented by senior counsel on this application, in so far as it seeks a personal costs order against the firm.  Directions were made for the filing of material and written submissions.  Some objections to the affidavits were raised in the written submissions but none of them were pressed at the oral hearing.    

History of the proceeding

1. The Notice of Claim was signed by the plaintiff on 25 June 2020.  It was served on the defendant’s solicitors on 3 July 2020.  It stated that when the plaintiff was in the Detention Centre when he was approximately 15 years of age, a guard would enter his cell to turn off the television and commenced touching him inappropriately.  The abuse was said to have escalated to digital penetration and oral rape once or twice weekly over a period of months.  The plaintiff did not know the name of the guard (as they did not call the guards by name) but described him as having dark short hair and being of a solid build.  It was further said that the guard told the plaintiff that if he reported the sexual abuse that he would be harmed by others.  

2. A report of psychiatrist, Dr Malcolm Foxcroft accompanied the Notice of Claim.   The report records that the plaintiff told Dr Foxcroft that the guard would hold him down while he was sexually offended against.  The guard would penetrate the plaintiff’s anus with his fingers and would perform oral sex on the plaintiff.  It appears from the report that it was Dr Foxcroft’s understanding that the sexual abuse continued over the two or three month period immediately prior to the plaintiff being released back to the community.   Dr Foxcroft opined that the plaintiff had suffered a psychiatric injury consequential upon the sexual abuse recounted by the plaintiff.  He assessed a 13 percent whole person impairment and attributed two thirds of this to the sexual abuse.    

3. By email dated 16 July 2020, the defendant’s solicitors informed the plaintiff’s solicitors that the defendant required further time to locate relevant records.   Approximately five months later, the plaintiff’s solicitors were informed that the defendant denied liability, although investigations were continuing.  

4. Dr Nigel Prior examined the plaintiff at the request of the defendant’s solicitors on 10 September 2020 and provided a report dated 6 April 2021.   Dr Prior’s report records that the plaintiff reported to him that it was more than one guard who had sexually offended against him.   It also documents that the plaintiff told him that he was subjected to anal penetration and that the guards would masturbate him and try to get him to masturbate and otherwise sexually touch them, but the plaintiff managed to avoid this.   It is further recorded that the plaintiff denied being forced to perform oral or anal sex with or to the guards.  Dr Prior concluded that the plaintiff showed evidence of an ongoing Post Traumatic Stress Disorder and an aggravation of an Antisocial Personality Disorder as a consequence of the sexual abuse.  Dr Prior assessed a seven percent whole person impairment, of which two thirds was considered to be attributable to the sexual abuse.  

5. The parties participated in a compulsory conference on 28 April 2021 and at the conclusion of it, mandatory final offers under the Personal Injuries Proceedings Act 2002 (‘PIPA’) were exchanged. Relevantly, the defendant’s offer was for nil, inclusive of all heads of damage and statutory refunds. It was stated to be open for 14 days (‘the April 2021 mandatory final offer’).

6. This mandatory final offer was not accepted by the plaintiff and proceedings were instituted on 3 June 2021.   In the statement of claim, it was pleaded that the guard who sexually abused the plaintiff was approximately 40 years of age, with dark short hair (including facial hair) and was of a solid build.  It was alleged that the guard initially abused the plaintiff by holding him down and touching his penis and that it escalated to digital and oral rape.  As to the frequency of this offending, it is said to have occurred approximately once to twice weekly over a period of two to three months.  

7. The defendant filed its defence on 1 July 2021.  It was pleaded that the plaintiff was detained at the Detention Centre for four days between 9 and 13 March 2009 (‘the first period of detention’) and then again for some six months, between 31 August 2009 and 23 February 2010 (‘the second period of detention’).  A reply was filed on 27 July 2021.  Subsequent amendments were made to the pleadings.           

8. On 20 July 2023, the plaintiff provided further and better particulars, to the effect that he could not provide any further particulars about the abuse, including the identity of the guard, the days of the weeks the abuse occurred, the threats made by the guard, or the dates on which the guard commenced:

   (i)entering his cell; or

   (ii)touching his penis; or

   (iii)digitally penetrating and performing oral rape on him.

9. Between mid-September 2023 and late May 2024, the defendant’s solicitors disclosed:

   (i)policies and other department documents;

   (ii)section logbooks of Ironbark A, Ironbark B and Oak (recording the identities of the guards who were said to have worked on each night in the accommodation sections where the plaintiff was housed during his second period of detention); and

   (iii)timesheets of the various guards referred to in the abovementioned sub-paragraph for the period encompassing the plaintiff’s second period of detention (‘the May 2024 documents’).  

10. By the amended defence filed on 20 May 2024, it was pleaded in paragraph 8(r) that nightly supervision of the plaintiff in his room was not undertaken by any one male guard who would have had the opportunity to commit the acts of abuse with the regularity and for the period alleged by the plaintiff.   This was not responded to in any further pleading by the plaintiff.  

11. On 27 March 2024, the defendant made an offer under Chapter 9, Part 5 of the UCPRs (‘the March 2024 formal offer’) on the following terms:

    (i)the defendant would not pay the plaintiff any sum of damages, interest, GST or statutory refunds;

    (ii)each party would bear their own costs of the proceeding and the preceding claim pursuant to PIPA;

    (iii)the offer would remain open for 14 days from the date of service; and

    (iv)the offer needed to be accepted in writing and would be conditional on the plaintiff executing the Deed of Release, Discharge and Indemnity.

12. The plaintiff did not accept the March 2024 formal offer and the proceeding was ultimately listed for trial.

Costs

1. The starting point is r 681 of the UCPRs, which provides that costs of a proceeding are in the discretion of the court, but follow the event, unless the court orders otherwise. This is because fairness dictates that the unsuccessful party typically bears the responsibility for the costs of the litigation.[1] 

   [1]Oshlack v Richmond River Council (1998) 193 CLR 72 at 97.

2. I can see no reason why the ordinary rule that costs follow the event should not apply in this case.   This leave the questions upon the basis which those costs should be assessed and whether they should be paid by the plaintiff or Shine Lawyers. 

3. Mandatory final offers under PIPA and formal offers under the UCPRs confer an unfettered jurisdiction on the courts to make an order for costs other than on the standard basis.

Mandatory final offer

1. As to mandatory final offers, the legislative procedures leading up to the making of such offers under PIPA have two principal aims. The first is promoting the resolution of claims at an early stage wherever possible. The second is to have the parties undertake several steps, meaning that they are appraised of the strengths and weaknesses of their respective cases.[2]

   [2] Pollock v Thiess Pty Ltd & Ors (No 3) [2014] QSC 121.

2. The April 2021 mandatory offer of nil by the defendant provided a more favourable outcome for the plaintiff than the consent order for judgment for the defendant. This is because the nil offer had the effect that there would be no costs payable by the plaintiff if it was accepted by him.   

3. This means that when considering the April 2021 mandatory final offer, the prima facie starting point is that the defendant is entitled to an order for costs on the indemnity basis.  However, this is not inevitable and the plaintiff bears the evidentiary onus to rebut the presumption. 

4. In my view the presumption is rebutted.  In arriving at this conclusion, I do not accept the defendant’s submission that the plaintiff fabricated the claim. This is a serious allegation and I am not satisfied that it is borne out in the material before me.  

5. Further, while I accept the defendant’s submission that it has been put to the expense of defending the proceeding for more than four years, the relevance of this is not clear.  This is because the determination of this aspect of the defendant’s application is necessarily focussed on the plaintiff’s knowledge of the strengths and weaknesses of his case at the time the April 2021 mandatory final offer was made.  

6. I am satisfied that the plaintiff did not act unreasonably or imprudently in not accepting the April 2021 mandatory final offer of nil. This is because he was not in a position to properly assess the prospects of success of his case. This offer was made at the conclusion of the compulsory conference after the defendant had been required pursuant to s 37(2) of PIPA to sign a certificate of readiness stating that all investigative material required by the party for the trial had been obtained. However, it was not until well after this conference that the defendant disclosed the May 2024 documents, which it considered to be “significant”. [3]

   [3] Refer to affidavit Thomas McLaughlin filed 10 June 2025, para 3 and 33.

7. Further, it is not as though the disclosure of the May 2024 documents was in response to additional allegations having been made by the plaintiff in the statement of claim.  To the contrary, the plaintiff had consistently maintained that he was sexually abused by at least one guard when he was in his cell at night.  

Formal offer

1. Rule 361A of the UCPRs regulates offers to settle made after 23 June 2023 by a defendant, in circumstances where the plaintiff’s proceeding is dismissed. The prima facie position is that provided the defendant was willing and able to carry out the terms of the proposed offer, the plaintiff is required to pay the defendant’s costs calculated on the standard basis up to the day of service of the offer, and on the indemnity basis after the day of service of the offer.

2. The costs results prescribed by r 361A should be applied according to its terms. Concepts such as reasonableness should not be imported into the application of these rules.[4]  The usual effect of the rules should only be departed from for proper reasons which, in general, only arise in exceptional circumstances.[5]

   [4] Built Qld Pty Ltd v Pro-Invest Australian Hospitality Opportunity (ST) Pty Ltd (No 2) [2023] QCA 140 at [29]; Nominal Defendant v Cordin [2019] NSWCA 85 at [163].

   [5]Forge v Rewers (No 2) [2017] ACTSC 273 at [29].

3. Offers to settle under r 361A should be in sufficiently clear to be capable of acceptance. Where judicial evaluation needs to be made of the effect of an offer, it must readily enable a comparison between the situation that would have been obtained had the offer been accepted and that arising from the judgment.[6]  

   [6]Balnaves v Smith [2012] QSC 408 at [20]-[22].

4. Like the April 2021 mandatory offer, the March 2024 final offer of nil with no costs payable by the plaintiff, was a more favourable outcome for the plaintiff than that obtained by the consent judgment for the defendant. I can see no reason why the usual effect of r 361A should not apply. The defendant is entitled to an award of indemnity costs from the day after the service of the offer, being 28 March 2024.

Solicitors’ conduct

1. Rule 690 of the UCPRs relevantly provides that a court may order a solicitor to repay to their client all or any part of costs ordered to be paid by the client to another party, if the party incurred the costs because of the solicitor’s delay, misconduct or negligence.

2. The court’s jurisdiction to order costs against solicitors representing parties is intended to be primarily compensatory, rather than punitive.  It falls to be exercised with considerable care, only in clear cases and only in a very exceptional situation.[7]  This high threshold means that such an order ought not to be made solely on inference without evidence, or simply because the ultimate outcome of the case is unfavourable to the client.[8]

   [7]Reid v Hubbard (No 2) [2004] FCA 180.

   [8] Steindl Nominees Pty Ltd v Laghaifar [2003] 2 Qd R 683; De Sousa v Minister of State for Immigration, Local Government and Ethnic Affairs (1993) 41 FCR 544 at 547–8; Macteldir Pty Ltd v Dimovski (2005) 226 ALR 773; Tarabay v Bechara [2010] NSWSC 202.

3. Solicitors acting under a speculative fee agreement are not immune from a wasted costs order. No exhaustive list can be made of improper conduct by a solicitor that may attract the jurisdiction to make a personal costs order. This is because of the numerous varied contingencies that may arise. The impropriety need not involve criminality, dishonesty or personal obliquity. The test in r 690 of the UCPRs will be enlivened by a solicitor’s delay, misconduct or negligence. This includes abusing the processes of the court for an ulterior purpose, or oppressive and other inexcusable conduct. It also encompasses conduct amounting to a serious dereliction, even when acting on a client’s instructions.[9]  Examples include issuing and pursuing proceedings known to be dishonest, evading rules intended to safeguard the administration of justice, and knowingly failing to make full disclosure.

   [9]Martin v Harris [2010] FamCA 239 at [34] per Fowler J.

4. The exercise of the jurisdiction may also be called into operation where after disclosure by the other party, the solicitor unreasonably continues a proceeding when it has no chance of success.  Alternatively, where there is disregard of any proper consideration of the relevant law and facts, in circumstances where if such attention had been given, it would have been apparent that it was unarguable and bound to fail.[10]   A further instance may be where the costs of litigation have been unnecessarily increased by the solicitor’s substantial failure to fulfil their duty to the court to promote the claim and the proper administration of justice.[11]

   [10]Edwards v Edwards [1958] P 235 at 248 per Sachs J.

   [11]Etna v Arif [1999] VR 353 at 379.

1. Having said this, the court is careful not to restrict a solicitor who vigorously advances their client’s interests by all proper means and in good faith.[12] This includes an unmeritorious case involving significant difficulties, as opposed to an unarguable one.  It is not always easy to distinguish by definition between the hopeless case and the case which amounts to an abuse of the process, but in practice if there is doubt, the legal representative is entitled to the benefit of it.[13]  Solicitors are required to take any point on behalf of their client that they honestly believe to be fairly arguable, provided they exercise the degree of care to both the client and the court expected of a reasonably competent solicitor.[14] Where there is the likelihood of a conflict of evidence between the solicitor’s client’s witnesses and those of the other side, it is the duty of the solicitor to weigh the evidence available to determine whether it raises a triable issue.  However, it is not their duty to usurp the court’s function and endeavour to assess how the court will resolve the conflict.[15]   

   [12]Loates v Loates (2000) 185 DLR (4^th) 525 at 534 per Lee J.

   [13]Ridehalgh v Horsefield [1994] Ch 205 at 233-4.

   [14]Yates Property Corporation (in liq) v Boland (1998) 157 ALR 30 at 53.

   [15]Orchard v South Eastern Electricity Board [1987] QB 565 at 572.

2. Further, such is the nature of the relationship between solicitor and client, that the court may not be privy to all the details and circumstances of the client’s instructions.  Where there is room for doubt, the solicitor is entitled to the benefit of the doubt, provided the case is not being progressed for an extraneous purpose.[16]  

   [16] Re Fogarty (No 2) (2007) 1 ACTLR 97; White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1998) 156 ALR 169 at 237.

3. Solicitors acting for one party, do not owe a duty of care to the opposing party.[17]

   [17] Collins v Metro North Hospital and Health Services & Ors [2023] QSC 194; Flower v Hicks [2024] SASCA 126.

4. In the defendant’s amended application dated 4 June 2025, it sought an order that Shine Lawyers pay its costs on the indemnity basis from 20 May 2024.  This coincides with when the defendant had disclosed the May 2024 documents. 

5. It is said that the contents of these documents and the defendant’s pleading in relation to them meant that Shine Lawyers ought to have appreciated that the plaintiff’s claim was “founded on allegations that were demonstrably false” and could not succeed.

6. However, I am not persuaded that the contents of the May 2024 documents are such that Shine Lawyers ought to have appreciated that the plaintiff’s case was plainly unarguable and bound to fail. While these documents are not before the court, it seems that the effect of them was to create a conflict between the plaintiff’s claim of sexual abuse in the Detention Centre and records brought into existence by the defendant.  Shine Lawyers were aware of the conflict, and on 18 June 2024 sought further instructions from the plaintiff in relation to them. The plaintiff told the solicitor that he disputed the accuracy of at least some of them.  One such dispute related to the records documenting that a guard had checked on him at 15-minute intervals each night.  I accept the evidence of the solicitor from Shine Lawyers that while he considered the May 2024 documents seriously challenged the instructions that had been provided by the plaintiff, that he did not regard them as determinative of the claim.  In other words, the May 2024 documents did not make it inevitable that the plaintiff’s claim would fail.  Rather, the contents of them created a clear factual conflict, which would need to be resolved at the trial.

7. In written and oral submissions, senior counsel for the defendant emphasised the fact that the plaintiff’s reply failed to respond to paragraph 8(r) of the amended defence, which alleged that the nightly supervision of the plaintiff was not undertaken by any single male guard. I am not persuaded that this failure to plead had the consequence of a deemed admission by the plaintiff pursuant to r 166 of the UCPRs. Paragraph 8(r) was in response to paragraph 11 of the plaintiff’s pleading, to the effect that the plaintiff had been sexually abused by a guard in his cell at night-time. Given that the plaintiff had not alleged that it was his nightly supervisor who perpetrated the sexual abuse on him, the response in the reply would have been simply reasserting facts in the statement of claim, which the plaintiff was not required to do by virtue of r 150(4) of the UCPRs.[18]  Instead, the failure to plead meant that it was deemed to have been answered by the plaintiff with a non-admission and the plaintiff would not have been entitled to lead evidence about it at the trial.[19]  This deemed non-admission was consistent with the plaintiff’s instructions on this issue and in my view was not fatal to his claim.  This is because the defendant’s allegation was based on the contents of the May 2024 documents and there would have been nothing preventing the plaintiff’s counsel from cross-examining relevant witnesses as to the circumstances in which the documents came into existence and other matters pertaining to their accuracy. 

   [18]Melco Engineering Pty Ltd v Eriez Magnetics Pty Ltd [2007] QSC 198.

   [19] Refer to rule 168 of the UCPRs.

8. Even if I am wrong about this and there was a deemed admission because of the failure to plead, there remained a triable issue, and it was for the court and not Shine Lawyers to judge it.   This is in circumstances where the solicitor from Shine Lawyers sought instructions from the plaintiff about this allegation on 18 June 2024, and the plaintiff remained firm on the abuse having occurred but said that he could not be certain that it was the same guard who abused him on each occasion.      

9. The responses provided by the plaintiff in his further and better particulars served on the defendant on 20 July 2023 is advanced by the defendant as another basis for the indemnity costs order against Shine Lawyers.   In those particulars it was said that the plaintiff was unable to further particularise the identity of the perpetrator, the dates the abuse commenced and escalated, and the duration of the various incidents of abuse.  It is contended by the defendant that:

   (i)the reasons articulated in that document for the plaintiff’s inability to provide this information were not proper reasons;

   (ii)the responses provided on behalf of the plaintiff were inconsistent with the versions given in the notice of claim, statement of claim and to Dr Foxcroft (as appeared in his report); and

   (iii)it is readily apparent that Shine Lawyers did not believe what the plaintiff was telling him and that they knew that the claim was devoid of any legitimate merit.  

10. As to subparagraphs (i) and (ii) above, to the extent that these are correct, they do not provide a justification for a personal costs order.  Rather, they would have been appropriate matters for cross-examination of the plaintiff at trial. It is relevant to note that the plaintiff did not know any of the guards by name and he was being asked to recall events that occurred 15 years earlier.  It is to be expected that his recollection may contain inconsistences given the passage of time and the evidence of his psychiatric injury.  Further, as to subparagraph (iii) above, I do not accept that it can be said that the further and better particulars in any way demonstrate that Shine Lawyers must have known that the plaintiff was fabricating his claim.  While the plaintiff’s inability to provide these further particulars may well have adversely affected his prospects of success, it did not mean that his claim ought to have been construed as fabricated.   

11. In the defendant’s written submissions dated 6 June 2025, it is asserted that the three iterations of the plaintiff’s pleading subsequent to May 2024 continued to advance a case that had no prospect of successfully establishing the occurrence of the events upon which the claim was founded.  While I accept that the plaintiff’s case may have been sufficiently problematic to be described as weak and was at risk of failing, this did not require Shine Lawyers to give up lending their assistance to his claim, particularly in circumstances where the plaintiff consistently maintained that he had been sexually abused in the Detention Centre, and there was nothing to suggest that he was pursuing his claim for an ulterior purpose.  

12. The defendant contends that the plaintiff’s affidavit evidences further misconduct and negligence on the part of Shine Lawyers, such as to justify a personal costs order against them.  I am not persuaded by this submission for several reasons.

13. First, it is readily apparent from the plaintiff’s affidavit that the court is not privy to the totality of the details and circumstances of the plaintiff’s instructions and Shine Lawyers’ advice to him.  For example, the plaintiff’s affidavit refers to “a lot of emails and letters from Shine Lawyers” that are not annexed to his affidavit.  Further, while the affidavit establishes that there was a conversation between the plaintiff and a solicitor from Shine Lawyers on 18 June 2024 and that there was a file note of that conversation, the file note was not exhibited to the plaintiff’s affidavit.  In addition, the information that would have been required for Shine Lawyers to have completed the statement of loss and damage does not appear in the affidavit.  The absence of this and other information means that Shine Lawyers is entitled to the benefit of any doubt and the court should be wary of ordering costs against them.  This is particularly the case where there is no evidence before me that Shine Lawyers’ continued prosecution of the plaintiff’s claim was mal fide or for an extraneous purpose. 

14. Second, there is reason to believe that the plaintiff’s recollection in relation to all the matters he has deposed to may not be necessarily accurate.   For example, the material demonstrates that there is a difference between the plaintiff’s and the solicitor’s recollection of the conversation they had on 18 June 2024.  In the absence of oral evidence, it is not possible to determine on the material before me, how this and other inconsistencies ought to be resolved.  

15. Third, some of the criticisms levelled against Shine Lawyers could not be categorised as sufficiently serious conduct to warrant an adverse costs order under r 690 of the UCPRs. One such example is the plaintiff’s evidence about what he was told as to the benefits of making a claim under PIPA, when compared with a claim under the redress scheme. Another example is the defendant’s reliance on the absence of evidence that Shine Lawyers discussed with the plaintiff the information he provided to Dr Foxcroft. Neither of these, alone or in combination, could be said to be substantial failures by Shine Lawyers to fulfil their duty to the court or to promote the cause of and proper administration of justice.

16. Fourth, in so far as the defendant’s complaints relate to a failure by Shine Lawyers to act in the plaintiff’s best interests, safeguards against such conduct fall to be dealt with in other areas of law, such as a claim in professional negligence or regulation by the Legal Services Commission.    

17. Fifth, I do not accept the defendant’s submission that it is apparent that Shine Lawyers’ strategy for the litigation was to “stick it out” in the hope that the defendant would “eventually crack”. On the plaintiff’s instructions, there was a case, and the existence of a psychiatric injury was supported by the expert reports of Drs Foxcroft and Prior.I am satisfied that from Shine Lawyers’ perspective, the purpose of the proceeding was related to the vindication of the plaintiff’s rights but with the expectation that he may well lose. This does not bespeak misconduct or support the serious finding of negligence required under r 690 0f the UCPRs.

18. As a matter of discretion, I am not satisfied that the conduct of Shine Lawyers was so egregious as to justify making a personal costs order against them. I would therefore refuse the application for such an order.  While it is unfortunate for the defendant that it was obliged to prepare to meet the claim at trial, it has a costs order against the plaintiff. 

Costs of this application

1. The defendant has been unsuccessful in its application for Shine Lawyers to pay the costs of part of the proceeding on the indemnity basis.  In my view, there is no good reason why Shine Lawyers ought to be deprived of its standard costs in responding to this part of the defendant’s application.

2. As to the defendant’s application for costs against the plaintiff, given it has been successful, the plaintiff ought to pay its costs of the application on the standard basis.  This does not include the costs the defendant is required to pay Shine Lawyers, as referred to in the abovementioned paragraph.

Orders

I order that:

1.The application for Shine Lawyers to pay the defendant’s costs on an indemnity basis from 20 July 2023 or 20 May 2024 is dismissed.  

2.The defendant pay Shine Lawyers’ costs of the application on the standard basis.

3.The plaintiff pay the defendant’s costs of the proceeding to be assessed on the standard basis up to 27 March 2024 and on the indemnity basis from 28 March 2024.  

4.The plaintiff pay the defendant’s costs of this application on the standard basis, excluding those costs payable by the defendant to Shine Lawyers, as referred to in paragraph 2 above.