Robertson v Hollings (Imagination Television Ltd) (No 2)

[2011] QSC 37

SUPREME COURT OF QUEENSLAND

CITATION:

Robertson v Hollings (Imagination Television Ltd) & Ors (No 2) [2011] QSC 37

PARTIES:

GERALDINE FOOI-FONG ROBERTSON
(plaintiff)
v
BETTINA HOLLINGS (IMAGINATION TELEVISION LTD)
(first defendant)
and
ROYAL SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS QUEENSLAND INCORPORATED
(second defendant)
and
STATE OF QUEENSLAND
(third defendant)

FILE NO/S:

2263 of 2009

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

15 March 2011

DELIVERED AT:

Brisbane

HEARING DATE:

2 December 2010, 17 December 2010, written submissions provided 20 December 2010

JUDGE:

Ann Lyons J

ORDER:

The plaintiff pay the first, second, third and proposed fourth defendants’ costs of and incidental to the application filed on 19 November 2010 on the standard basis as agreed or as assessed.(i)         

The plaintiff pay the first, second and third defendants’ costs of the applications for judgment filed on 23 and 25 November 2010 on the standard basis as agreed or as assessed.  (ii)        

CATCHWORDS:

PROCEDURE – COSTS -  GENERAL RULE – COSTS FOLLOW THE EVENT – where judgment in respect of two applications was delivered on 17 December 2010 – where the applicant/plaintiff was unsuccessful – where the first, third and proposed fourth defendant seek that the plaintiff pay the costs of the applications on the standard basis – where the second defendant seeks that the plaintiff pay the costs of the application on an indemnity basis – whether costs should follow the event – whether costs should be awarded on a standard basis or an indemnity basis in respect of each defendant

Uniform Civil Procedure Rules 1999 (Qld)

Di Carlo v Dubois & Ors [2002] QCA 225, cited

COUNSEL:

Plaintiff appeared on her own behalf
J Ward for the first defendant
R Fryberg for the second defendant
E Longbottom for the third defendant
M Johnston for the proposed fourth defendant

SOLICITORS:

North Law as town agents for Buddle Findlay for the first defendant
Clayton Utz for the second defendant
Crown law for the third defendant
Thynne & Macartney for the proposed fourth defendant

Ann LYONS J: 

1. On 17 December 2010 I delivered judgment in respect of two applications heard on 2 December 2010. Those applications were unusual in that the proceeding was devoid of a statement of claim and it was approximately the plaintiff’s ninth attempt at filing the proposed statement of claim. I found that the proposed pleadings contained no viable causes of action and the plaintiff was unsuccessful. 

1. The following orders were made:

1. The plaintiff’s application for leave to file the proposed statement of claim should be refused;
2. The plaintiff’s application to join Queensland Newspapers Pty Ltd as a fourth defendant should be refused; and
3. Judgment should be entered in favour of the first, second and third defendants.

1. At the judgment delivery counsel for the third defendant and proposed fourth defendant sought their costs on the standard basis and submitted that costs should follow the event.

1. The second defendant sought the costs of both their application for judgment and the plaintiff’s application for leave on an indemnity basis.

1. In my view it is appropriate that costs should follow the event and be awarded in favour of the first, third and proposed fourth defendants on the standard basis.

1. Turning then to the second defendant’s application for costs on an indemnity basis in relation to their application for judgment and the plaintiff’s application for leave on an indemnity basis.

1. The plaintiff is self represented and had difficulty making arguments as to costs so the parties were invited to provide written submissions as to the costs of the applications within 3 days.

1. In oral argument counsel for the second defendant submitted that although it was not necessary under the Uniform Civil Procedure Rules 1999 (Qld) (UCPR), a 6 page letter was sent to the plaintiff setting out the reasons why the second defendant should have the relief it sought. This was the relief which was ultimately granted. Paragraph 13.4 of that letter stated that if the plaintiff pressed ahead with her application for leave to file the statement of claim they would “reserve the right to tender this letter to the Court in relation to the issue of costs and place you on notice that our client may instruct us to seek indemnity costs.”

1. In response the plaintiff stated that:

“They have been sending me letters nonstop virtually about every little thing, and mostly they were invalid letters, and it became a habit. And there was no specific mention that that letter was written under Rule 444 under the UCPR rules, so obviously it was like every other letter that I received. And they were numerous.”

1. There is no evidence before me to suggest the amount of correspondence sent by the second defendant to the plaintiff was unreasonably voluminous and I also consider that clear notice of the intention to seek indemnity costs was provided.

1. The plaintiff’s written submissions repeated allegations that the Courts and the RSPCA are corrupt. On the issue of costs the plaintiff detailed rr 681 and 703 of the UCPR:

681 General rule about costs
(1) Costs of a proceeding, including an application in a proceeding, are in the discretion of the court but follow the event, unless the court orders otherwise.
(2) Subrule (1) applies unless these rules provide otherwise.

703 Indemnity basis of assessment
(1) The court may order costs to be assessed on the indemnity basis.
Note--
Costs on the indemnity basis were previously solicitor and client costs--see rule 743S (Old basis for taxing costs equates to new basis for assessing costs).
(2) Without limiting subrule (1), the court may order that costs be assessed on the indemnity basis if the court orders the payment of costs--
(a) out of a fund; or
(b) to a party who sues or is sued as a trustee; or
(c) of an application in a proceeding brought for noncompliance with an order of the court.
(3) When assessing costs on the indemnity basis, a costs assessor must allow all costs reasonably incurred and of a reasonable amount, having regard to--
(a) the scale of fees prescribed for the court; and
(b) any costs agreement between the party to whom the costs are payable and the party's solicitor; and
(c) charges ordinarily payable by a client to a solicitor for the work.

1. The plaintiff also relied on the 2002 decision of Di Carlo v Dubois & Ors[1] in which White J, as she then was, stated the following:

“[37] There are numerous authorities which discuss the circumstances in which a court will be justified in making an order for indemnity costs. Two are regularly cited – Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397, a decision of Woodward J, and Colgate-Palmolive. From his review of the cases Sheppard J was able to derive a number of principles or guidelines. At pp 232-4 his Honour recognised that the categories in which the discretion may be exercised are not closed. Woodward J at 637 in Fountain said that there needs to be some special or unusual feature in the case to justify a court departing from the ordinary practice. Sheppard J instanced the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud; misconduct that causes loss of time to the court and the other parties; the fact that the proceedings were commenced at or continued for some ulterior motive; or in wilful disregard of known facts; or clearly established law; the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions; the imprudent refusal of an offer to compromise; and costs against a contemnor. In my view the principles in that case support an award of costs against the plaintiff on an indemnity basis. “

[1][2002] QCA 225.

1. Ultimately the basis upon which costs are awarded is in the Court’s discretion. In making an order which departs from the general rule, the court must be satisfied that the proceeding contains some special or unusual feature.

1. In my view although the proceeding has a long history, I am not satisfied that there is sufficient reason to award costs to the second defendant on the indemnity basis. It would seem to me that Ms Robertson’s beliefs are genuinely held and that the number of attempts at pleading were the result of her lack of qualifications rather than any malice or ulterior motive. There is no indication that the proceedings were brought in bad faith.

1. Accordingly I order that the plaintiff pay the first, second, third and proposed fourth defendants’ costs of and incidental to the applications to be assessed on the standard basis.