Monazeh v Wheaton
[2008] QDC 189
•4 August 2008
DISTRICT COURT OF QUEENSLAND
CITATION:
Monazeh v Wheaton [2008] QDC 189
PARTIES:
ABBAS ALI RAHIMI MONAZEH
(Appellant)
v
SIMON WHEATON
(Respondent)FILE NO/S:
BD 589/07
DIVISION:
Appellate
PROCEEDING:
Appeal from the Commercial and Consumer Tribunal
ORIGINATING COURT:
District Court Southport
DELIVERED ON:
4 August 2008
DELIVERED AT:
Southport
HEARING DATE:
13 June 2008
JUDGE:
Kingham DCJ
ORDER:
The appellant to pay the respondent’s costs to be assessed on the standard basis. Such costs to be assessed by a costs assessor appointed by the Registrar if not agreed.
CATCHWORDS:
COSTS – INDEMNITY COSTS – SELF-REPRESENTED PARTY- Commercial and Consumer Tribunal- Appeal- where self-represented party claims he did not know he would be exposed to a costs order
Supreme Court Act 1995 (Qld) s 209
Uniform Civil Procedure Rules 1999 (Qld) r 681, 703
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Donald Campbell & Co Ltd v Pollak [1927] AC 732
Oshlack v Richmond River Council (1998) 193 CLR 72
Australian Law Reform Commission, Managing Justice: Review of the Federal Justice System, Discussion Paper 62, August 1999
Supreme Court of Queensland, Equal Treatment Benchbook, 2005
COUNSEL:
Mr Monazeh self-represented
Mr Campbell for the respondent
SOLICITORS:
James Watt & Co for the respondent
On 26 June 2008 I delivered judgment on an appeal from the decision of the Commercial and Consumer Tribunal. During the hearing, the respondent sought an opportunity to provide submissions about costs once judgment was delivered. I have now received submissions from both parties.
Before dealing with the respondent’s application for costs, mention need be made of the appellant's correspondence with the Registrar and with me since I delivered my judgment on his application. The appellant has made a number of overheated and groundless allegations about my disposition of his appeal. In so far as they relate to the respondent’s application for a costs order, it may well be that the appellant has misconstrued what transpired after my judgment was delivered.
Firstly, the appellant complains the respondent is out of time to make submissions to me about an order for costs. That is not so. I gave the respondent until 4 July to provide me with submissions and I received them, by e-mail to my associate, on 3 July. The appellant’s assumption the respondent had missed a deadline apparently arose because he did not receive a copy of the submissions before that date and there was no copy o the Court file. There was no requirement for them to be filed. However a copy should have been provided to him by the respondent. The respondent's solicitors remedied that default on 16 July 2008 and, after further complaint from the appellant, my associate provided another copy to him on 24 July 2008. In light of that delay, the appellant was given an extension of time within which to make submissions.
Secondly, the appellant has apparently laboured under the misapprehension that I had already made an order for costs without first hearing from him. Perhaps the appellant was misled by a draft order attached to the respondent’s submissions, although this would suggest that, contrary to his assertions, the appellant had received those submissions at a time he complained he had not done so. It matters little how the confusion arose, I have not made an order in the terms proposed in that draft and the appellant was advised of that as early as 16 July 2008.
The appellant’s allegations of improper conduct on my part can be categorised as racism, bias and collusion with one party, lying, displaying anger towards him and punishing him for being self represented. None requires rebuttal. Despite the strong terms in which they were couched they are so plainly misdirected and inappropriate that none has, or could, affect my impartiality. I now turn to the respondent’s application.
The respondent seeks an order the appellant pay his costs of the appeal, assessed on an indemnity basis. The court has a general discretion over costs but, in the absence of special circumstances, it exercises its discretion to award costs to the successful party (Oshlack v Richmond River Council). A successful respondent has a reasonable expectation of obtaining an award of costs (Donald Campbell & Co Ltd v Pollak at 811-812; Uniform Civil Procedure Rules r 681). The respondent has not conducted itself in such a manner that the usual approach should be eschewed.
The appellant resists an order for costs, citing serious financial pressures, although he has provided no detail in that regard. He also argues that, had the issue of costs been raised prior to the hearing of his application for leave to appeal, he would have withdrawn it. The appellant submitted that, as a self represented person, he did not understand he might be exposed to a costs order. All litigants have a right to appear in person (Supreme Court Act 1995 s 209). The court must ensure self-represented parties understand applications made against them and are given the opportunity to make submissions about them. (Managing Justice: Review of the Federal Justice Systemat [9.2]).
The respondent foreshadowed his application for costs at the hearing. Consistent with guidelines adopted in this jurisdiction, I explained the nature of the application and provided the appellant with the opportunity to make submissions to me about the application. (Equal Treatment Benchbook [12.5]). Whilst due allowance must and has been made for the appellant as a self represented party, it does not follow that different rules apply. I am not persuaded his status as a self-represented party, alone, justifies a different order to that which I would make were he represented.
The appellant has suggested that a settlement has been reached with the respondent. Somewhat at odds with that submission, the appellant argues no order as to costs should be made so that negotiations between the parties may continue. The material provided to me by the appellant indicates the respondent’s willingness to negotiate prior to the appeal being heard. However, in the letter relied upon by the appellant, the respondent’s solicitors called for confirmation of acceptance of his offer to settle. Evidently the offer was not accepted as the application proceeded to argument. Nothing provided by the appellant suggests otherwise. I take the appellant’s submission to mean that an order for costs would prevent further negotiations to settle the matter between the parties. The respondent now seeks a costs order and I am not persuaded that prior inconclusive negotiations should rule that out.
The appellant has also accused the respondent’s solicitor, whom he identifies as a friend of the respondent, of abuse of process. There is nothing before me to indicate any improper conduct on the part of either the respondent or his solicitor. The respondent’s costs of the application should be paid by the appellant.
The respondent seeks an order that costs are assessed on an indemnity basis. In essence this submission rests on an argument that the application was doomed to fail. Whilst, ultimately, I determined the appellant’s application lacked merit, there is no special or unusual feature which would justify assessment of costs on an indemnity basis (Colgate-Palmolive Co v Cussons Pty Ltd, and Uniform Civil Procedure Rules r 703).
I order the appellant pay the respondent’s costs of the appeal assessed on the standard basis.
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