Merrin v Cairns Port Authority

[2006] QDC 268

DISTRICT COURT OF QUEENSLAND

CITATION:

Merrin v Cairns Port Authority [2006] QDC 268

PARTIES:

TOM MERRIN and ANNETTE MERRIN

Plaintiffs

V

CAIRNS PORT AUTHORITY

Defendant

FILE NO/S:

2553 of 2003

DIVISION:

Civil

PROCEEDING:

Application for costs

ORIGINATING COURT:

Brisbane

DELIVERED ON:

4 August,2006

DELIVERED AT:

Brisbane

HEARING DATES:

16 May, 2006

JUDGE:

McLauchlan QC DCJ

ORDER:

Plaintiffs to pay the defendant’s costs of and incidental to the proceeding, save for the costs of the first trial, including all reserved costs, to be assessed on the standard basis

CATCHWORDS:

COUNSEL:

Mr Amerena for the defendant

SOLICITORS:

MacDonnells Solicitors for the defendant

1. When judgment was delivered in this matter, the question of costs was reserved.  The defendant applied for costs to be assessed on an indemnity basis.  The plaintiffs were not present and an opportunity was given to them to make submissions in relation to costs.  No submissions have been made.

1. The defendant is entitled to the costs of the action on the basis that the costs should follow the event.   It is material to the question whether costs should be assessed on an indemnity basis or on the standard basis, that the plaintiffs were self-represented.  They were self-represented because they did not have funds to engage in litigation against the defendant.  They are also not experienced or knowledgeable in litigation and, in that sense, the contest between them and the defendant was a very unequal one,  although Mrs Merrin did, from time to time, display some aptitude for the task.

1. I consider that indemnity costs should be awarded only on the basis of blameworthiness on the part of the plaintiffs.  It is true that, in my view, their conduct of the proceedings was characterised to some extent by dishonesty, but at the same time it appeared to me that they share a somewhat paranoid world view, and a part of this is a conspiracy theory involving the defendant, its legal representatives and various other institutions and office holders in the Queensland community.  They were hampered by this mentality as much as or more than, by their lack of experience and knowledge of legal proceedings.  In particular, I think that they probably genuinely considered the defendant and its representatives to be dishonest and prone to trickery in the conduct of this litigation.  On that basis, they may well have concluded that they had little prospect of success unless they also to some extent indulged in such behaviour.

1. I should say that nothing in the case gave me any grounds for supposing that that view of the defendant and its conduct of the  litigation had any support in reality.

1. Although the conduct of the plaintiffs in the litigation was in many ways deplorable,  for the reasons I have indicated I think that they were not fully responsible for that conduct.  In those circumstances, I do not feel justified in ordering that they pay costs assessed on an indemnity basis.  The order for costs is that the plaintiffs pay the defendant’s costs of and incidental to the proceeding, save for the costs of the first trial, including all reserved costs, to be assessed on the standard basis.