Lewis v Hillhouse

[2005] QSC 78

SUPREME COURT OF QUEENSLAND

CITATION:

Lewis v Hillhouse & Anor [2005] QSC 078

PARTIES:

TERENCE MURRAY LEWIS
(plaintiff)
v
IAN BRUCE HILLHOUSE
(first defendant)
DAVID ALAN BURROUGH
(second defendant)
ESTATE OF RICK GLYNN WHITTON (deceased)

(third defendant)

FILE NO/S:

BS 2144 of 2004

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court, Brisbane

DELIVERED ON:

14 April 2005

DELIVERED AT:

Brisbane

HEARING DATE:

4 October 2004

JUDGE:

Moynihan J

ORDER:

1.   The plaintiff pay the costs of the action and of the application to strike out assessed on a standard basis.

CATCHWORDS:

PROCEDURE – COSTS – GENERAL RULE-COSTS FOLLOW THE EVENT – COSTS OF WHOLE ACTION – GENERALLY – defendant seeks order that plaintiff pay their costs of action on indemnity basis – plaintiff resists order for assessment on indemnity basis

Uniform Civil Procedure Rules 1999 (Qld), rule 703

di Carlo v Dubois [2002] QCA 225;
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchant Ltd (1988) 81 ALR 397;
MIM General Insurance Ltd v D’Anglers’ Paradise Pty Ltd [2002] QSC 224;

Rosniak v Government Insurance Office (1997) 41 NSWLR 608.

COUNSEL:

Mr J N O’Donoghue (sol) for the plaintiff

Mr R Hanson QC, with Mr K F Holyoak for the defendant

SOLICITORS:

John Neive O’Donoghue Solicitors for the plaintiff

Coyne & Associates for the defendant

1. MOYNIHAN J: On 23 February 2005 for reasons which I then published I struck out the plaintiff’s action and provided for the parties to make written submissions as to costs.  They have now done that.

1. The action was struck out because it was a collateral challenge to a verdict in a criminal trial and hence an abuse of process.

1. The defendants seek an order that the plaintiff pay their costs of the action including the striking out proceedings on an indemnity basis.  The plaintiff resists an order for assessment on an indemnity basis.

1. Uniform Civil Procedure Rule 703 provides that unless the rules or the court orders otherwise costs are to be assessed on a standard basis.  Rule 704(1) permits the court to order costs to be assessed on an indemnity basis. 

1. Such orders should not be made too readily.  There needs to be some special or unusual feature to justify a court departing from the usual practice and ordering assessment on an indemnity basis: Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchant Ltd[1]; di Carlo v Dubois[2] at [37]. The court will look for some evidence of unreasonable although not necessarily vexatious conduct; Rosniak v Government Insurance Office[3] at 616.

   [1] (1988) 81 ALR 397

   [2] [2002] QCA 225

   [3] (1997) 41 NSWLR 608

1. In MIM General Insurance Ltd v D’Anglers’ Paradise Pty Ltd[4], Wilson J awarded indemnity costs in circumstances where a plaintiff’s claim was dismissed as an abuse of process.  The same claim had been previously made in the Federal Court and was dismissed.  Wilson J concluded that the claim was res judicata, could not be re-litigated and that the respondent properly advised should have known that it had no chance of success.

   [4] [2002] QSC 224

1. In my view a perusal of the reasons of 23 February 2005 does not justify a conclusion that the plaintiff should have known that the action had no chance of success.

1. It is true that the ultimate basis on which the application was successful was abuse of process.  Arriving on that conclusion however involved a consideration of authorities on advocates immunity and collateral challenge.  The defendant chose, in the end, to argue the application on a narrower basis than it first appeared.  This avoided some obstacles which would otherwise have stood in the way.

1. There is no other consideration justifying departing from assessment on a standard basis.

1. I therefore order the plaintiff pay the defendant’s costs of the action and of the application to strike out assessed on a standard basis.