Shepherd v Nominal Defendant (No 2)

Case •

[2020] QSC 228

•

29 July 2020

SUPREME COURT OF QUEENSLAND

CITATION:

Shepherd v Nominal Defendant (No 2) [2020] QSC 228

PARTIES:

Chase Shepherd BHLG Bou Shepherd

(Plaintiff)

v
Nominal Defendant

(Defendant)

FILE NO/S:

SC No 686 of 2016

DIVISION:

Trial Division

PROCEEDING:

On the Papers

ORIGINATING COURT:

Supreme Court at Townsville

ORDERS MADE:

29 July 2020

DELIVERED AT:

Townsville

JUDGE:

North J

ORDER:

1.       The Litigation Guardian, Bou Shepherd, pay the defendant’s costs (assessed on the standard basis) of and incidental to:

1)   The proceeding in the District Court;

2)   The application for transfer of the proceeding into this Court; and

3)   The proceeding in this Court.

CATCHWORDS:

COSTS

SOLICITORS:

Premier Compensation for the plaintiff

Jensen McConaghy for the defendant

  1. I published my reasons for judgment on 26 June 2020. I ordered that there be judgment for the defendant. On that occasion I intimated that in my view costs should follow the event (see reasons at [101]).

  2. I proposed an order for costs with leave to either party to submit in writing for a different order within 21 days.

  3. The defendant has submitted for an order different from the order I proposed.[1] The plaintiff has not submitted to the contrary.[2]

    [1]     See email dated 16 July 2020, Ex 1 on this costs hearing.

    [2]     See email dated 27 July 2020, Ex 3 on this costs hearing.

  4. In its submissions, the defendant, correctly, reminds me that the plaintiff sued by his Litigation Guardian, his brother. (See reasons at [2], the Consent of Bou Shepherd filed 1/7/2016 and UCPR r 95).

  5. In the circumstances the plaintiff’s Litigation Guardian is exposed to a liability for costs in the event, as happened here, of an adverse outcome in the litigation.[3]

    [3]     See NSW Insurance Ministerial Corps v Abualfoul (1999) FCA 433 at [28], [29] and [30]; N (on behalf of her son N) the State of Queensland (acting through the Dept of Education and the Arts) [2007] QSC 208 at [61].

  6. The defendant submits that the Litigation Guardian should pay the defendant’s costs of and incidental to the proceeding both in the District Court and in this Court.

  7. So far as I can determine there is no decisive legal or discretionary consideration that suggest an order following the event as sought by the defendant should not be made (consider UCPR r 681).

  8. In the circumstances the order for costs should be:

    “The Litigation Guardian, Bou Shepherd, pay the defendant’s costs (assessed on the standard basis) of and incidental to:

    1)The proceeding in the District Court;

    2)The application for transfer of the proceeding into this Court; and

    3)The proceeding in this Court.”


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