Rogers v Asset Loan Co Pty Ltd (No 2)

[2008] FCA 1333

FEDERAL COURT OF AUSTRALIA

Rogers v Asset Loan Co Pty Ltd (No 2) [2008] FCA 1333

Federal Court Rules

Colgate-Palmolive Co & Anor v Cussons Pty Ltd (1993) 118 ALR 248 - considered
Bhagat v Global Custodians Ltd [2002] FCA 223 - considered

LYNNE MAREE ROGERS v ASSET LOAN CO PTY LTD ACN 107 746 798, ASSET LOAN COMPANY PTY LTD ACN 101 054 997, PAUL ALEXANDER SYDNEY HARE, RUSSELL FRANK PERCIVAL, JUDITH LORRAINE HARE AS TRUSTEE FOR THE HARE PROPERTY TRUST, RIVERSTONE NOMINEES PTY LTD ACN 063 086 546 AS TRUSTEE FOR THE PERCIVAL FAMILY TRUST NO 2 and SEAN WHITTLE

QUD375 OF 2007

LOGAN J
29 AUGUST 2008
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD375 OF 2007

BETWEEN:

LYNNE MAREE ROGERS
Applicant

AND:

ASSET LOAN CO PTY LTD ACN 107 746 798
First Respondent

ASSET LOAN COMPANY PTY LTD ACN 101 054 997
Second Respondent

PAUL ALEXANDER SYDNEY HARE
Third Respondent

RUSSELL FRANK PERCIVAL
Fourth Respondent

JUDITH LORRAINE HARE AS TRUSTEE FOR THE HARE PROPERTY TRUST
Fifth Respondent

RIVERSTONE NOMINEES PTY LTD ACN 063 086 546 AS TRUSTEE FOR THE PERCIVAL FAMILY TRUST NO 2
Sixth Respondent

SEAN WHITTLE
Seventh Respondent

JUDGE:	LOGAN J
DATE OF ORDER:	29 AUGUST 2008
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The Applicant pay the Respondents’ costs of and incidental to the application to be taxed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD375 OF 2007

BETWEEN:

LYNNE MAREE ROGERS
Applicant

AND:

ASSET LOAN CO PTY LTD ACN 107 746 798
First Respondent

ASSET LOAN COMPANY PTY LTD ACN 101 054 997
Second Respondent

PAUL ALEXANDER SYDNEY HARE
Third Respondent

RUSSELL FRANK PERCIVAL
Fourth Respondent

JUDITH LORRAINE HARE AS TRUSTEE FOR THE HARE PROPERTY TRUST
Fifth Respondent

RIVERSTONE NOMINEES PTY LTD ACN 063 086 546 AS TRUSTEE FOR THE PERCIVAL FAMILY TRUST NO 2
Sixth Respondent

SEAN WHITTLE
Seventh Respondent

JUDGE:	LOGAN J
DATE:	29 AUGUST 2008
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. On 21 August 2008 for reasons which I then published I dismissed the Applicant’s application for leave to appeal from the judgment delivered by Collier J on 1 November 2007.  I made directions for the filing and exchange of written submissions in respect of the costs of the application for leave to appeal.  Such submissions have been filed on behalf of the Respondents only. 

2. The Respondents have submitted that costs ought to be ordered on an indemnity basis.  They acknowledge that the ordering of costs on this basis is exceptional requiring some special or unusual feature:  Colgate-Palmolive Co & Anor v Cussons Pty Ltd (1993) 118 ALR 248 at 257. They also acknowledge that there is a general reluctance to make an order for costs to be paid on an indemnity basis against the litigant in person: Bhagat v Global Custodians Ltd [2002] FCA 223 at [57] and [60] per O’Loughlin, Whitlam and Marshall JJ.

3. There is no doubt that costs should follow the event.  In respect of whether or not to order that the Applicant pay those costs on an indemnity basis, I have a discretion to exercise.  I note that Collier J did not order that Mrs Rogers pay costs on an indemnity basis.  There is undoubtedly a flavour of obstinate persistence about the litigation which Mrs Rogers has instituted.  Further, as I remarked in my substantive reasons for judgment, the addition of Mr Whittle as a Respondent seemed to me to be gratuitous.  Such considerations naturally do give one pause for thought about whether costs on an indemnity should be awarded.  I make no criticism of the Respondents for raising this as a consideration.  Nonetheless, Mrs Rogers has pursued, without the benefit of legal advice, what she genuinely sees as a grievance.  Were she again to seek to agitate these issues then the case for an awarded indemnity costs would have a compelling flavour, in my opinion.  However, in this instance it seems to me that the ordinary rule as to the basis of the taxation ought to be prevail, especially, having regard to her status as a litigant in person. 

4. The order therefore will be that the Applicant pay the Respondents’ costs of and incidental to the application to be taxed.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

Associate:

Dated:        29 August 2008

Counsel for the Applicant:	The Applicant appeared in person
Counsel for the Respondents:	Mr GJ Handran
Solicitor for the Respondents:	Whittle Lawyers

Date of Hearing:	21 August 2008
Date of Final Written Submissions:	27 August 2008
Date of Judgment:	29 August 2008