Mowen v Rockhampton Regional Council - [2018] QSC 44

SUPREME COURT OF QUEENSLAND

CITATION:

Mowen v Rockhampton Regional Council [2018] QSC 44

PARTIES:

BEVAN ALAN MOWEN
(Plaintiff)

v

ROCKHAMPTON REGIONAL COUNCIL
(Defendant)

FILE NO/S:

S449/17

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court Rockhampton

DELIVERED ON:

9 March 2018

DELIVERED AT:

Rockhampton

HEARING DATE:

9 February 2018

JUDGE:

McMeekin J

ORDER:

Save for the costs of the application for a vexatious proceedings order the plaintiff to pay the costs of the defendant of the proceedings S449/17 and of the applications heard on 27 November 2017 on the standard basis.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INDEMNITY COSTS – PARTICULAR CASES – HOPELESS CASE – where solicitors for the defendant had warned the plaintiff in a letter that his action was doomed to failure – where the solicitors for the defendant had informed the plaintiff of the precise basis upon which summary judgment would be sought against him – where a Calderbank offer was made inviting the plaintiff to discontinue his action and in exchange the defendant would bear its own costs – where the plaintiff was advised that if he persisted the defendant would seek indemnity costs – whether the plaintiff should pay the defendant’s costs on an indemnity basis

Uniform Civil Procedure Rules 1999 (Qld) r 171, r 293
Vexatious Proceedings Act 2005 (Qld)

Bhagat v Royal and Sun Alliance Life Assurance Australia Ltd [2000] NSWSC 159, cited
Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353, cited
Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435 at 442, considered
Howe v Lees (1910) 11 CLR 361, cited
J & D Rigging Pty Ltd v Agripower Australia Ltd & Ors [2014] QCA 23, cited
Macedon Ranges Shire Council v Thompson (2009) 170 LGERA 41, cited
Macintosh v Dun [1908] AC 390, cited
Mizikovsky v Queensland Television Ltd [2013] QCA 68, cited
Papaconstuntinos v Holmes à Court (2012) 249 CLR 534, cited
Quach v Health Care Complaints Commission (No 2) [2015] NSWCA 311, distinguished
Salfinger v Niugini Mining (Australia) Pty Ltd (No 4) [2007] FCA 1594, cited
Spalla v St George Motor Finance (No 8) [2006] FCA 1537, cited
Vink v Tuckwell (No 3) (2008) 67 ACSR 547, cited
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, cited

COUNSEL:

Applicant in person

M Amerena for the respondent

SOLICITORS:

Applicant in person

King & Company Solicitors for the respondent

McMeekin J: The present application concerns the costs orders that ought to be made in light of my reasons delivered on 20 December 2017.[1] I then dealt with various cross applications. Mr Mowen sought to have certain District Court proceedings transferred to the Supreme Court and to have them “joined” to defamation proceedings pending in this Court (S449/17) so that they be heard together. The Rockhampton Regional Council opposed joinder and cross applied in respect of the defamation proceedings brought against the Council:

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.

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Details

Case: [2018] QSC 44
Decision Date: 9 March 2018

CaseChat Overview and Summary

The case of Mowen v Rockhampton Regional Council involved the plaintiff, Mowen, who brought an action against the defendant, Rockhampton Regional Council. The dispute centered around the plaintiff's claim for indemnity costs, which he argued were unjust after his case was deemed hopeless. The Rockhampton Regional Council's solicitors had previously warned the plaintiff in a letter that his action was likely to fail and informed him of the basis for seeking summary judgment against him. Furthermore, the council had made a Calderbank offer, which invited the plaintiff to discontinue his action in exchange for the council bearing its own costs. The plaintiff was also advised that if he persisted with the case, the council would seek indemnity costs from him. The central legal issue was whether the plaintiff should be required to pay the defendant's costs on an indemnity basis.

The court considered the circumstances surrounding the plaintiff's decision to proceed with his action despite clear warnings from the defendant's solicitors. It was noted that the plaintiff had been given ample opportunity to discontinue his case and had been advised of the potential for indemnity costs. The court held that the plaintiff's decision to continue with the action was unreasonable and that the defendant's solicitors had acted appropriately in warning the plaintiff of the consequences. Given these circumstances, the court ruled that the plaintiff should bear the defendant's costs on an indemnity basis, except for the costs associated with the application for a vexatious proceedings order.

In summary, the court found that the plaintiff's decision to proceed with his action despite clear warnings and a Calderbank offer was unreasonable. The court determined that the plaintiff should pay the defendant's costs on an indemnity basis, except for the costs associated with the application for a vexatious proceedings order. This decision underscores the importance of heeding legal advice and considering the potential consequences of continuing with a case that has little to no chance of success.

Orders

Orders of the court

Save for the costs of the application for a vexatious proceedings order the plaintiff to pay the costs of the defendant of the proceedings S449/17 and of the applications heard on 27 November 2017 on the standard basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Mowen v Rockhampton Regional Council [2018] QSC 44
PARTIES:	BEVAN ALAN MOWEN (Plaintiff) v ROCKHAMPTON REGIONAL COUNCIL (Defendant)
FILE NO/S:	S449/17
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court Rockhampton
DELIVERED ON:	9 March 2018
DELIVERED AT:	Rockhampton
HEARING DATE:	9 February 2018
JUDGE:	McMeekin J
ORDER:	Save for the costs of the application for a vexatious proceedings order the plaintiff to pay the costs of the defendant of the proceedings S449/17 and of the applications heard on 27 November 2017 on the standard basis.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INDEMNITY COSTS – PARTICULAR CASES – HOPELESS CASE – where solicitors for the defendant had warned the plaintiff in a letter that his action was doomed to failure – where the solicitors for the defendant had informed the plaintiff of the precise basis upon which summary judgment would be sought against him – where a Calderbank offer was made inviting the plaintiff to discontinue his action and in exchange the defendant would bear its own costs – where the plaintiff was advised that if he persisted the defendant would seek indemnity costs – whether the plaintiff should pay the defendant’s costs on an indemnity basis Uniform Civil Procedure Rules 1999 (Qld) r 171, r 293 Vexatious Proceedings Act 2005 (Qld) Bhagat v Royal and Sun Alliance Life Assurance Australia Ltd [2000] NSWSC 159, cited Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353, cited Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435 at 442, considered Howe v Lees (1910) 11 CLR 361, cited J & D Rigging Pty Ltd v Agripower Australia Ltd & Ors [2014] QCA 23, cited Macedon Ranges Shire Council v Thompson (2009) 170 LGERA 41, cited Macintosh v Dun [1908] AC 390, cited Mizikovsky v Queensland Television Ltd [2013] QCA 68, cited Papaconstuntinos v Holmes à Court (2012) 249 CLR 534, cited Quach v Health Care Complaints Commission (No 2) [2015] NSWCA 311, distinguished Salfinger v Niugini Mining (Australia) Pty Ltd (No 4) [2007] FCA 1594, cited Spalla v St George Motor Finance (No 8) [2006] FCA 1537, cited Vink v Tuckwell (No 3) (2008) 67 ACSR 547, cited Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, cited
COUNSEL:	Applicant in person M Amerena for the respondent
SOLICITORS:	Applicant in person King & Company Solicitors for the respondent