Solon Theo Family Trust v Chief Executive, Department of Natural Resources and Water
[2011] QLC 2
•21 February 2011
LAND COURT OF QUEENSLAND
CITATION: Solon Theo Family Trust v Chief Executive, Department of Natural Resources and Water [2011] QLC 0002 PARTIES: Solon Theo Family Trust
(appellant)v. Chief Executive, Department of Natural Resources and Water
(respondent)FILE NOS: AV2008/0070, AV2008/0071, AV2008/0350,
AV2008/0351, AV2008/0352, AV2008/1012DIVISION: Land Court of Queensland PROCEEDING: Application for costs DELIVERED ON: 21 February 2011 DELIVERED AT: Brisbane HEARD AT: Heard on the Papers MEMBER: Mr PA Smith ORDER: 1. The respondent pay the costs of the appellant incurred on and from 4 October 2010 to and including the day prior to the delivery of this decision on the standard basis.
2. All costs orders in this matter relate to Mr Theo personally and not to “Solon Theo Family Trust”.
3. Service of the respondent’s submissions as to costs was effected on Mr Theo by 21 May 2010 at the latest, and Mr Theo suffered no prejudice by service of the submissions being effected in the way that they were.
4. Mr Solon Theo pay the respondent’s costs of and incidental to the appeal in each matter on an indemnity basis, save for costs incurred on and from 4 October 2010 to and including the day prior to the delivery of this decision.
5. The court declines to make orders pursuant to r 440 of the UCPR striking out various material and evidence provided by Mr Theo.
CATCHWORDS: PRACTICE AND PROCEDURE – COSTS – Indemnity – Self-represented Litigant – Frivolous and vexatious – SERVICE – How Affected – Personal service – Standard service – Informal service – TIME – Court Orders – Service out of time – Whether prejudice shown – NAME OF PARTY – Trustee – Land held in personal ownership – AFFIDAVIT EVIDENCE AND SUBMISSIONS – Scandalous or oppressive material – Strike out application APPEARANCES: Mr S Theo for the appellant
Mr JB O’Rourke for the respondent
Background
This decision relates to an application by the respondent that Mr Theo pay the costs of the appellant with respect to each appeal the appellant instituted relating to the valuation of land on certain property held by Mr Theo as trustee for the Solon Theo Family Trust. Each of the appeals were dismissed. For his part, Mr Theo also seeks various cost orders.
The determination of costs with respect to each of these appeals should have been very straightforward. Unfortunately, in circumstances which approach the bizarre, what should have been relatively routine has become overly complex.
To begin with, it is appropriate that I quote directly from my decision of 13 April 2010 in which I dismissed all of the appeals.[1] At paragraphs [13] to [15] of that decision, I had this to say:
[13] ... The transcript speaks for itself. Mr Theo was, in my view, deliberately evasive in answering questions. On each occasion where Mr Theo claimed a loss of memory, it is my view that he was being deliberately untruthful. Mr Theo sought to put the credibility of the respondent’s valuers, and indeed Mr Isdale, into question. What resulted was the respondent leading evidence which clearly destroyed Mr Theo’s credit. A forensic evaluation of the transcript and evidence will do nothing more that reinforce this and take up unnecessary time for any reader of this decision.
[14] It is appropriate, in my view, that I should make comment on the conduct of the respondent. In the many appeals that I have dealt with over the years, the respondent has, in the vast majority of cases, conducted itself as the model litigant. This has, at times, included cases involving difficult appellants well known to the valuation appeal process. The appellant chose to put character in issue. In response, the respondent has effectively ‘taken the gloves off’[2]. In doing so, rather than being critical, I commend the respondent for continuing to uphold the principle of the model litigant. In my view, Mr Theo cannot complain. He chose to cast the first stone, and he has been found out.
[15] I have not the slightest hesitation in ordering that each of the appeals be dismissed.
[1] [2010] QLC 0071.
[2] See The Oxford Dictionary of Phrase and Fable, Oxford University Press, 2000, page 419.
I then went on in my decision on the valuation appeals to set out a timetable for the lodgement of submissions regarding costs should the respondent decided to seek costs against the appellant. That timetable required the respondent to make any application seeking costs by 4.00pm 14 May 2010. In the event that costs were sought, the appellant had until 4.00pm 11 June 2010 to file and serve submissions in response, and the respondent had until 4.00pm 25 June 2010 to file and serve any submissions in reply.
Court records show that the respondent filed submission in the Court on 14 May 2010 seeking orders that the appellant and Mr Theo pay the costs of the respondent on an indemnity basis or, in the alternative that the appellant and Mr Theo pay the respondent’s costs on the standard basis or, in the alternative that the appellant pay the costs of the respondent on an indemnity basis or, again in the alternative that the appellant pay the costs of the respondent on the standard basis. Court records further indicate that Mr Theo filed his submissions on 9 June 2010. By his submissions, Mr Theo seeks orders that each party bear its own costs with respect to each appeal. Importantly, Mr Theo also refers in his submissions to an alleged failure by the respondent to serve his submissions on Mr Theo by 14 May 2010 as required by the Land Court order of 13 April 2010. Mr Theo claims that the submissions were not received by the appellant until 21 May 2010, having been sent by the respondent to the wrong address for Mr Theo. Importantly, Mr Theo supported his submissions by an affidavit he swore on 1 June 2010 which was filed in the Court on 9 June 2010. Exhibited to Mr Theo’s affidavit of 1 June 2010 was a Queensland Government envelope addressed as follows
“ Mr Solon Theo
19 Webster Rd
Deception Bay Qld 4508 ”By his affidavit, Mr Theo swears that his address is 69 Webster Rd, Deception Bay.
The time provided for the respondent to file and serve any submissions in reply came and went without further material being filed by the respondent.
On 1 October 2010 the Deputy Registrar of the Land Court wrote to the appellant and the respondent advising that the costs decision in each of the matters currently under consideration was to be handed down by the Court at 2.00pm on Tuesday 5 October 2010.[3] On 4 October 2010, Mr O’Rourke, Principal Legal Officer for the respondent sent an email to Mr Hobson, Deputy Registrar, Land Court in the following terms:
“Please find enclosed affidavit of service of respondent’s costs submissions.”
Attached to the email was an affidavit of Alexander Field. In his affidavit, Mr Field says that he served the appellant with the respondent’s outline of submissions on costs by securely placing the submissions contained within an envelope in the letterbox at 69 Webster Road, Deception Bay. Mr Field further goes on to conform that, by error, the address written on the envelope was 19 Webster Road not 69 Webster Road. Further, Mr Field exhibits to his affidavit photographs taken of him placing the envelope in the letterbox at 69 Webster Road, Deception Bay on 14 May 2010.
[3] Please note that I was absent on long leave in mid 2010.
It is quite extraordinary that the respondent waited until the day before the delivery of the decision on costs to provide the Court with evidence in rebuttal of Mr Theo’s evidence regarding late service of the respondent’s submissions on the appellant. Indeed, the decision which was to be handed down on 5 October 2010 was prepared on the basis that the allegations put forward by Mr Theo in his affidavit of 1 June 2010 were not contradicted and it was at that time my intention, prior to receiving the affidavit evidence from the respondent, to accept Mr Theo’s evidence.
Following receipt of Mr Field’s affidavit, the delivery of the decision set for 5 October 2010 was vacated and orders were made allowing the appellant to file and serve any additional material or submissions it considered appropriate by 4.00pm 25 October 2010. The respondent was allowed to serve any submissions in response by 4.00pm 1 November 2010 and the Trust could file and serve any submissions in reply by 4.00pm 5 November 2010.
Subsequently, on 18 October 2010, Mr Theo filed a document titled Affidavit/Submissions in the Court. Mr Theo submitted that, as the respondent had failed to conform to the Court’s order of 13 April 2010, no award for costs in favour of the respondent should be made. Mr Theo further submitted that, if he was unsuccessful in that argument and costs were ordered to the respondent, that an equal amount of costs should be allowed for the appellant. He also submitted in the alternative that there should be an order that each party bear its own costs. Mr Theo also sent two letters to the Land Court dated 16 October 2010 relating to the issue of costs, such letters being received by the Court by post on 1 November 2010.[4]
[4] The affidavit/submissions of Mr Theo of 15 October 2010 were received by facsimile by the Court and date stamped 18 October 2010.
The respondent filed submissions in response on 27 October 2010. It is pertinent to note, with respect to the respondent’s failure to make any response prior to 4 October 2010 as regards Mr Theo’s allegations of a failure by the respondent to comply with orders of the Court, that the respondent submitted as follows:
(5) The Respondent did not make Reply Submissions for the reason that the Appellant’s Response Submissions did not contain any matter of substance nor any matter in relation to costs so that a Reply Submissions were unnecessary.
(6) As the content of the Appellant’s Response Submissions was confined to supposed procedural defects of the Respondent’s Submissions including that they were served out of time, it was considered that this best be dealt with by an affidavit of service and there was no requirement that such an affidavit of service be filed at any particular time prior to the hearing.
The respondent also submitted that certain statements contained in Mr Theo’s affidavit were scandalous and requested “that pursuant to R.440(c) of the Uniform Civil Procedure Rules 1999 they be struck out and that the appellant pay any costs associated therewith”. Additionally, the respondent also sought an order that statements made by Mr Theo as to an oral undertaking by the respondent’s Chief Executive Officer were vexatious and irrelevant and sought the striking out of those statements and that the appellant pay costs thereof. Additionally, the respondent sought orders that the appellant pay the costs associated with the Court’s orders of 4 October 2010.
Mr Theo filed submissions in reply on 4 November 2010. Mr Theo sought orders that the respondent pay his costs associated with the Court order of 4 October 2010.
Respondent’s belated response to Theo affidavit of 1 June 2010
As detailed above, the facts alleged by Mr Theo in his affidavit of 1 June 2010 were not answered by the respondent until Mr Field’s affidavit of 1 October 2010 was filed in the court on 4 October 2010, the day before the decision was due to be delivered. Even if the respondent’s contention that Mr Field’s affidavit was procedural and not required to be filed within any particular timeframe is correct, it is my view that the lengthy delay by the respondent in providing Mr Field’s affidavit, and the respondent’s action in filing such affidavit the day prior to the delivery of the decision and in circumstances where the respondent and the applicant had already been notified by the court that the decision was to be delivered on 5 October 2010, is inconsistent with the expectation that the respondent will conduct himself as the model litigant. Indeed, paragraph 2M of Mr Theo’s affidavit of 15 October 2010 is an example of the lack of trust in an open, transparent and robust legal system that can arise in the public eye when actions like that of the respondent take place. In paragraph 2M of Mr Theo’s affidavit, he had this to say:
“also, for what it is worth, the Deponent considers mysterious the Respondent’s ‘11th Hour email’ just a day before the Court was to hand down it’s decision as if he coincidentally predicted its wording”.
In short, Mr Theo has raised the suspicion that Mr Field and, presumably, the respondent, was aware of the contents of the decision to be handed down on 5 October 2010 prior to that decision being delivered.
Members of the Land Court are of course part of the Judiciary of Queensland and are fully independent of all aspects of Government. As with any court, the Land Court is careful to ensure that all decisions of the court remain totally confidential until such time as those decisions are delivered.
I do not accept the respondent’s reasons for the filing of Mr Field’s affidavit on 4 October 2010. I agree with Mr Theo that the need for additional affidavits and submissions post 4 October 2010 arose as a direct consequence of the respondent’s late filing of Mr Field’s affidavit. Accordingly, it is my view that the respondent should pay the costs of the appellant incurred on and from 4 October 2010 to and including the date prior to the delivery of this decision on the standard basis, and I so order.
Name of appellant
In each of the appeals, the appellant was titled “Solon Theo Family Trust”. I have become aware of a transcript of proceedings before Justice McMurdo in the Supreme Court relating to the appointment of a costs assessor arising out of other Land Court and Land Appeal Court proceedings involving the appellant.[5] In that matter, Justice McMurdo noted the following:[6]
“The proceedings in the Land Court and in turn the Land Appeal Court have involved disputed valuations in respect of several parcels of land. The proceedings in each case have been entitled as between the Chief Executive, Department of Natural Resources and Water and on the other side of the record, the ‘S. Theo Family Trust.’
The order of the Land Appeal Court was made in an appeal in which the appellant was so described. The Land Appeal Court then ordered that the so-called appellant was to pay 40 per cent of the respondent’s costs of and incidental to the appeal.
The order provided that the costs were to be assessed by the appropriate assessing officer of this Court on the standard basis using the Supreme Court scale of costs current at the date of this order and it further provided that the order be an order of the Supreme Court and enforceable in the Supreme Court.
At the commencement of the hearing of the application this morning, Mr O’Rourke, a solicitor from the Department, read the application and his supporting affidavit. I then inquired as to the status of the appellant. I stood the matter down and the matter has come back this afternoon with the assistance of information provided by Mr O’Rourke that each of the properties was one of which the registered owner is Mr Solon Theo.
Mr Theo appeared today to contest this application, and he has argued the case against the Department at all stages in the Land Court and the Land Appeal Court.
When I asked Mr Theo whether he was the current trustee of the so-called S. Theo Family Trust, he strenuously denied that. He told me that he resigned as trustee indeed some 10 years ago. That cannot be reconciled with copies of the searches of the register that show that the properties have become owned by Mr Theo, as trustee of that trust, within the last 10 years.
It seems to me that the record does need to be put in order. A trust, of course, is not a distinct legal entity and of itself it cannot be a party to litigation. The state of the Land Title Register demonstrates beyond doubt that Mr Solon Theo has been the owner, with the necessary standing to challenge the valuations which have been the subject of the proceedings in the Land Court and Land Appeal Court. He appeared, in other words, in those jurisdictions, as he appears here, not as a representative, but as the relevant party. Accordingly, I will order that the name of the appellant in these proceedings be amended from ‘S. Theo Family Trust’ to Solon Theo.”
[5] See transcript Supreme Court of Queensland Chief Executive, Department of Environment and Resource Management v S Theo Family Trust 5 October 2010 McMurdo J.
[6] At transcript pages 2 – 4.
For reasons identical to those stated by Justice McMurdo, it is my view that I should treat Mr Theo as the appellant in these proceedings. In this regard, I note that the owner of each property the subject of original appeal in these matters is noted on the QVAS database held by the Valuation Administration, under the heading owner (VOLA) “Solon Theo as TTE”.[7] Accordingly, I order that all costs orders in this matter will relate to Mr Theo personally and not to “Solon Theo Family Trust”.
[7] The QVAS reports were prepared by a deputy register of the Land Court at my request prior to delivery of this decision.
In this regard, I note that I have not received submissions on this point from either party. In normal circumstances, I would seek formal submissions from each party prior to proceeding in this way. In my view, however, it is not necessary to obtain any additional submissions in this matter for a number of factors, including the primary fact that this very issue was ventilated before the Supreme Court recently involving both parties. Additionally, I am cognisant of the time and expense to which all involved have been placed in dealing with this matter. In my view, it is time that finality was reached. In short, nothing is to be gained by seeking further submissions from the parties on this point.
Service of respondent’s submissions by 4.00pm 14 May 2010
Mr Theo, by his affidavit of 1 June 2010 and his submissions of 9 June 2010, argues that the respondent has lost his right to seek costs in this matter as, in Mr Theo’s view, the Land Court’s orders relating to filing and service of submissions on costs were not followed by the respondent.
There are a number of points that should be made in this regard. Firstly, there is no doubt that the respondent’s submissions were filed in the court on 14 May 2010 as required by the court’s order. There is conflicting evidence as to when Mr Theo was served with the submissions. Mr Theo in his submissions appears to be of the view that personal service of documents is required. However, it is beyond doubt that personal service is primarily required for originating proceedings only and was certainly not a requirement in this instance.[8] It should be noted that the use of the UCPR is relevant in this regard in light of Rule 4 of the Land Court Rules 2000, which stipulate that, when the Land Court Rules do not provide for a matter in relation to a proceeding in the court and the UCPR provide for the matter, the UCPR rules apply. Relevantly, rule 112 provides as follows:
[8] See UCPR Rule 105.
“[r 112] How ordinary service is performed
112 (1) If these rules do not require personal service of a document, the following are ways by which the document may be served on the person to be served —
(a) leaving it with someone who is apparently an adult living at the relevant address;(b)if there is no-one at the relevant address — leaving it at the relevant address in a position where it is reasonably likely to come to the person’s attention;
(c)if the relevant address is within a building or area to which the person serving the document has been denied access — leaving it at the building or area in a position where it is reasonably likely to come to the person’s attention;
(d) posting it to the relevant address;
(e) if the person has given —(i) a fax number under these rules — faxing the document to the person; or
(ii) an email address under these rules — emailing the document to the person;
(f)if the solicitor for the person has —
(i) an exchange box at a document exchange — leaving the document in the exchange box or another exchange box available for documents to be transferred to the solicitor’s exchange box; or
(ii) a fax — faxing the document to the solicitor; or
(iii) an email address — emailing the document to the solicitor;
(g) an electronic means prescribed direction.”
Mr Field’s affidavit is silent as to what attempts, if any, he made to leave the document that he was serving with a person at the address for service. In my view, it may reasonably be inferred from Mr Field’s affidavit that he made no attempt to hand the document to any person but merely placed the document within a mail box at the address for service. Indeed, Mr Field confirms that this is the way in which he has “served” document on Mr Theo in the past. It is somewhat surprising that the respondent has not ensured that the rules are strictly complied with when serving documents on Mr Theo. As the rules indicate, there are many avenues open to the respondent to effect service. The respondent relies upon s.39 of the Acts Interpretation Act 1954 which, in sub-section 1(a)(ii), permits service by leaving a document at “the address of the place of residence or business of the person”. However, the respondent has failed to take into account the provisions of sub-section 3 of section 39 which states as follows:
“(3) Nothing in subsection (1)—
(a)affects the operation of another law that authorises the service of a document otherwise than as provided in the subsection; or
(b)affects the power of a court or tribunal to authorise service of a document otherwise than as provided in the subsection.”
There is no doubt that there is a duty on all parties appearing before the court to ensure that court orders are complied with. Indeed, it has been a matter of considerable concern to the court, expressed by myself and other members in numerous matters, that parties to proceedings often fail to meet timelines specified by orders of the court, and also fail to inform the court of an inability to meet a court imposed timeline prior to such timeline expiring. In Mr Theo’s view, the failure, as he sees it, of the respondent to properly serve his submissions on 14 May 2010 has the effect of rendering inoperable the court’s orders relating to submissions as to costs. Mr Theo is in error in this regard. There was clearly no element of a self executing order contained within the court’s orders requiring submissions to be filed and served.
There is one essential component to the administration of justice which Mr Theo has failed to address in any of his submissions. That fundamental principle relates to prejudice. In short, the test to be applied is: assuming Mr Theo did only receive the respondent’s submissions on 21 May 2010, what prejudice was there to Mr Theo in receiving those submissions one week late? On all of the material before me, Mr Theo has failed to show how he was prejudiced in any way. Had Mr Theo shown any prejudice, then such prejudice could have been accommodated by either an award of costs; an extension of time for Mr Theo to make his response submissions; or both.
Put simply, as Mr Theo can show no prejudice arising from his allegation that he received the respondent’s submissions seven days late, then even if that were the case, that is no reason why the court cannot proceed to consider the respondent’s submissions and make such orders as it considers appropriate.
For completeness, I should refer to rule 117 of the UCPR which provides as follows:
“[r 117] Informal service
117 If —
(a)for any reason, a document is not served as required by this chapter but the document or a copy of it came into the possession of the person to be served; and
(b)the court is satisfied on evidence before it that the document came into the person’s possession on or before a particular day;
the court may, by order, decide that the possession of the document is service for these rules on the day it came into the person’s possession or another day stated in the order.”
I find it more likely than not that Mr Theo received the document on 14 May 2010. Even by Mr Theo’s own evidence, he was clearly in possession of the respondent’s submissions by 21 May 2010. Relying upon rule 117 I order that service of the respondent’s submissions as to costs was effected on Mr Theo by 21 May 2010 at the latest, and that Mr Theo suffered no prejudice by service of the submissions being effected in the way that they were.
Substance of the matter – should costs be awarded?
I now turn to what is, in effect, the principal aspect of this matter, that being whether or not an award for costs should be made with respect to the substantive appeals in this matter.
Mr Theo has provided the court with various documents and submissions, some of which appear to miss the point. However, he did clearly articulate relevant submissions in his submissions filed on 9 June 2010. I will let Mr Theo’s written submissions speak for themselves:[9]
[9] At pages 2 and 3.
“• With the above qualifications in mind, (and without prejudice in referring to as) the Respondent’s submissions, considers them untruthful, out of context vexatious and frivolous, as well as to the opposite of their allegations applies, with the exception of the referred to Land Court Act 2000 s 34(2), and in order to avoid any further waste of time etc, the reasons are elaborated by the details that follow,’ and this, for the Court to order for each party to the proceeding to bear its own costs for the proceeding’
•Nowhere did the Land Court nor the Land Appeal’s Court characterised Sol THEO ‘s approach as being frivolous. Nor vexatious, neither in regard to the discharging or not the party’s responsibilities. Besides the fact that the alleged Respondent’s relevant references are irrelevant to the cases on foot.
•On the contrary the fact that THE LAND APPEAL’S COURT in previous cases AFFIRMED the Respondent’s at least two partial errors, justifies Sol Theo’s appeals’ undertaking, and proves that they were never frivolous nor vexatious as alleged by the Respondent.
•The disputed by the appellant as Valid submissions of the Respondent’s approach is nothing else but a ‘wishful thinking’ that the public at large should be intimidated by the fear of legal costs, and abstain from appealing, if intended to challenge the Respondents’ valuations. The Court will agree that having Previously appealed, cannot have any prejudicial legal bearing in determining the existence of frivolity because of past appeals.(relevant to previous cases) in dealing with the cases on foot. On the contrary the said Respondent’s paragraph confirms its frivolous and legally unfounded approach. In addition, the Respondent’s contemptuous to the Court approach, by not conforming to the Court’s order of the 13.4.2010.
Besides the fact that the Land Courts have encouraged the Appellant ‘NOT TO HESITATE IN FUTURE in appealing. Also : REF.: A) LAND COURT: in Bowden v The Valuer General (1980) 7 QLCR 138 where the Court said at p. 147:
‘Easy Access to the Land Court to air grievances and to have valuations reviewed is, as we have already stressed, most desirable in revenue cases, and such access should be available without fear of costs being awarded to either party except in special cases’.
B)LAND COURT OF QUEENSLAND: in Solon THEO FAMILY TRUST v Chief Executive, Department of Natural Resources and Water (2007) QLC0069, on the 5.9.2007 the Judicial Registrar Mr. BR O’Connor said in page 12 of his decision and in regard to the relevant appeal:
‘Given all the circumstances of the present case, my view is that no
award of costs should be made. The appellant did have some success in two of the previous appeals. However, the appellant should carefully
Note: the grounds on which the Chief Executive has sought costs inthese Appeals that were dismissed. In particular, the ultimate
absence of any substantial grounds to support the appeals, the
absence of any real basis for the appellant’s submitted valuations
and the prolonged time that the overall hearing occupied. In saying
this, I acknowledge the fact that the Appellants’ agent, Mr. THEO,
is a lay person and not a trained lawyer or valuer. I also
acknowledge the traditional leniency given to lay persons appearing
in the Land Court under the general equity and good conscience
provisions of the Land Court Act 2000.The Appellant should not be inhibited from making future appeals to the Land Court or to the conduct of such by Mr. THEO etc. etc.”
The respondent seeks orders for the payment of indemnity costs by Mr Theo. The respondent relies upon two grounds for the awarding of indemnity costs, they being that the appeals were frivolous or vexatious, and that the appellant did not properly discharge his responsibilities in the appeal. In support of these contentions, the respondent has referred to various paragraphs from the court’s decision dismissing the appellant’s appeals, as well as from other appeals in both the Land Court and the Land Appeal Court involving Mr Theo.
Relevant legislation
The question of costs of the valuation appeals is covered by s.70 of the Valuation of Land Act 1944 (“the VLA”).[10] Section 70 of the VLA provides as follows:
[10] Although the VLA has subsequently been replaced by the Land Valuation Act 2010, the VLA continues in force for the purposes of the appeals in question.
70 Costs of appeal against valuation
(1) Subject to subsection (2), each party to an appeal must bear the party’s own costs for the appeal.
(2) The court may only order costs for an appeal, including allowances for witnesses attending for giving evidence at the appeal, as it considers appropriate in the following circumstances—
(a)the court considers the appeal, or part of the appeal, to have been frivolous or vexatious;
(b)a party has not been given reasonable notice of intention to apply for an adjournment of the appeal;
(c)a party has incurred costs because the party is required to apply for an adjournment because of the conduct of the other party;
(d)a party has incurred costs because another party has defaulted in the court’s procedural requirements;
(e)without limiting paragraph (c), a party has incurred costs because another party has introduced, or sought to introduce, new material;
(f) a party does not properly discharge the party’s responsibilities in the appeal.
Have the actions of the appellant been frivolous or vexatious
As I made clear in my decision of 13 April 2010, in the appeals in question Mr Theo has “essentially run the same arguments on appeal despite the previous rulings of the court”.[11] In this regard, I went on to note that “it could well be said that Mr Theo’s actions amount to a contempt of this court and the valuation appeal process”.[12] I further noted[13] that I could find “nothing in the material advanced by Mr Theo that has not already been dealt with, from a valuation and the relevant legal principles perspective, in the matters involving Mr Theo already referred to”. Such matters were set out in footnote 1 of the decision.
[11] See [2010] QLC 0071 at [9].
[12] See [2010] QLC 0071 at [9].
[13] At [11].
At paragraph [13] I noted that:
“Mr Theo was, in my view, deliberately evasive in answering questions. On each occasion where Mr Theo claimed a loss of memory, it is my view that he was being deliberately untruthful. Mr Theo sought to put the credibility of the respondent’s valuers, and indeed Mr Isdale, into question. What resulted was the respondent leading evidence which clearly destroyed Mr Theo’s credit.”
At [15] of the decision, I stated that I had “not the slightest hesitation in ordering that each of the appeals be dismissed”.
Mr Theo in his submissions has quite correctly pointed to authorities, including those relating to his own previous appeals, where the court has reaffirmed the principal that in appeals brought under the VLA, appellants should not be deterred from issuing an appeal by the threat of costs being awarded against the appellant. Mr Theo goes on to assert that those authorities should be used in support of his contention that no award of costs should be made with respect to the appeals under consideration. He points to the fact that he has had some success in previous appeals. That however, is not the point. As I clearly set out in my reasons, in the appeals currently under consideration, Mr Theo did not raise any new issues which had not already been litigated and determined before the court. Mr Theo did not rely on any new sales evidence with respect to the later valuation periods which applied for each of these appeals. He simply referred to the same grounds of appeal that he had used previously.
Unlike his previous matters, where he did have some success such as with respect to electricity transmission lines, it was clear that the respondent had taken all relevant factors into consideration in determining the valuation of each parcel of land for the appeals currently under consideration; had properly applied all previous Land Court decisions; and had properly taken into account the relevant sales evidence in arriving at the respective valuations. Certainly, Mr Theo was free to file appeals against these valuations in the court. However, in sustaining those appeals, it was encumbent upon Mr Theo to establish error on the part of the respondent. He could have attempted to do this by relying upon his own sales evidence for the respective periods. He failed to do this. He could have raised grounds of appeal which had not previously been considered by this court and indeed the Land Appeal Court. He not only failed to do so, but he repeated the very same issues that he had previously unsuccessfully litigated.
In short, I have no hesitation in finding that, for the purposes of s.70 of the VLA, each of the appeals instituted by Mr Theo were frivolous and vexatious.
Did Mr Theo properly discharge his responsibilities in the appeal?
As set out above, s.70 of the VLA also allows for an award of costs to be made if, in the court’s opinion, a party does not properly discharge the party’s responsibilities in the appeal.
For the reasons already set out in my consideration of whether or not Mr Theo’s appeals were frivolous or vexatious, it is my view that Mr Theo did not properly discharge his responsibilities in any of the appeals before the court.
For completeness I should note that Mr Theo used these appeals as a mechanism for making gratuitous attacks on both officers of the respondent and on the legal representatives for the respondent. By bringing character into question, Mr Theo opened up the issue of his own character and, after a proper forensic approach by counsel for the respondent, Mr Theo’s character was found to be severely wanting. I note in particular the contents of exhibit 9 in the proceedings and the findings of Justice Cooper that Mr Theo had executed transfers with the intent to defraud creditors.[14]
[14] See the submissions of Mr Isdale as set out at [12] of the decision specifically approved by myself at paragraph [13] of the decision.
I am satisfied that Mr Theo did not properly discharge his responsibilities in the appeal.
Indemnity costs
Having concluded that it is appropriate that an award of costs be made in the respondent’s favour with respect to the appeals by Mr Theo, I now turn to the question as to whether or not those costs should be awarded on an indemnity basis as sought by the respondent.
The law relating to indemnity costs was conveniently summarised by Chesterman J in Emanuel Management Pty Ltd (In Liquidation) & Ors v Foster’s Brewing Group Ltd & Ors and Coopers & Lybrand & Ors.[15] His Honour had this to say:[16]
[15] [2003] QSC 299.
[16] At [17] and [18].
“[17]The authority to which attention is usually directed is Colgate-Palmolive Co. v Cussons Pty Ltd (1993) 46 FCR 225 in which Sheppard J identified a number of circumstances in which it may be appropriate to make an order for indemnity costs. They include:
(i)Making allegations of fraud knowing them to be false or making irrelevant allegations of fraud.
(ii)Misconduct that causes loss of time to the court and the opponent.
(iii)Commencing or continuing proceedings for some ulterior motive or in wilful disregard of known facts or clear law.
(iv)Making groundless allegations.
(v)An imprudent refusal of an offer to compromise.
‘The question must always be whether the particular facts and circumstances … warrant the making of an order for payment of costs other than on a party into party basis.’
[18]Rosniak v Government Insurance Office (1997) 41 NSWLR 608 (at 616) has perhaps taken the position furthest in deciding that it is not necessary for the party seeking the protection of indemnity costs to establish ethical or moral delinquency by its opponent. It is enough to show ‘unreasonable conduct’ of some sort. That case itself demonstrates that the inexactness of such a test can give rise to difficulty in its application.”
Applying Chesterman J’s reasoning, it would appear appropriate, given both Mr Theo’s conduct and the fact that Mr Theo prosecuted his appeals on grounds which had already been dismissed by both this court and the Land Appeal Court and persisted without calling any valuation or other sales evidence to support his case, that a order that Mr Theo pay the respondent’s indemnity costs should be made. However, before finally dispensing with this aspect, there is one further consideration to be taken into account. That is the fact that Mr Theo was self-represented.
It is indeed true that Mr Theo has appeared on many occasions before this court, the Land Appeal Court and other courts. Whilst that shows that Mr Theo is, or at least should be, familiar with the procedures and protocols of the Courts, nevertheless it does not remove the fact that Mr Theo lacks any legal training or qualifications.
The Victorian Court of Appeal in the case of Macedon Ranges Shire Council v Thompson & Anor[17] specifically considered the question of self-represented litigants and indemnity costs. In this regard, the court had this to say:[18]
[17] [2009] 170 LGERA 41.
[18] At paragraphs 16 – 18.
“Self represented litigants and indemnity costs
The appellants were ‘self-represented’ throughout the period in which the Notice of Appeal and appeal books were filed (the notice of discontinuance coming approximately six weeks after legal advisors had been retained). The question, therefore, arises as to the extent to which the fact the appellants were self-represented ought weigh in the exercise of the Court’s discretion as to costs. This question was not raised for consideration by the Court in the application by the Authority.
But as a general rule a court will be more reluctant to make an order for indemnity costs against a litigant in person than against a represented litigant.22 The prevailing circumstances of the case might be such as to allow the Court to overcome this reluctance.23 Robson J in Vink v Tuckwell24 conveniently summarised the effect of the authorities dealing with circumstances in which a non-represented litigant might be subject to an order for indemnity costs as follows:
Ogawa v University of Melbourne (No 2) [2004] FCA 1275; Bhagat v Royal & Sun Alliance Life Assurance Australia Ltd [2000] NSWSC 159.
23. Spalla v St George Motor Finance Ltd (No 8) [2006] FCA 1537.
[103]There are special considerations applying to indemnity cost orders against litigants in person, as the following authorities disclose.
[104]In Bhagat v Royal and Sun Alliance Life Assurance Australia Ltd, Hodgson CJ in Eq observed:
… I accept that a court does have to make allowances for the position of litigants in person, and to try to ensure that such a litigant does not lose out because of lack of expertise; although there is a limit to what the Court can do in that regard, while still remaining an impartial determinant of a dispute. The Court may in those circumstances refrain from making orders against litigants in person for conduct that might be considered as justifying orders for costs against represented litigants. By the same token, litigants in person can cause great hardship and expense to other parties, through making allegations and claims that lawyers would recognise as allegations and claims that could not reasonably or even properly be made, and through making proceedings much longer and much more expensive than they would otherwise be, by not focusing accurately on the real issues in the case. Conduct of that nature by legally represented parties would often lead to orders for indemnity costs. Litigants in person may escape the consequence of indemnity costs, but I do not think that the circumstance that a party is a litigant in person is a ground for displacing the ordinary result that costs follow the event.
[105]In Bhagat v Global Custodians Ltd, the Full Court of the Federal Court (constituted by O’Loughlin, Whitlam and Marshall JJ) observed Hodgson CJ in Eq did not say that litigants in person always escape the consequence of indemnity costs and declined to interfere with the decision of the trial judge to order indemnity costs against the unrepresented litigant. These judgments were cited with approval by Kenny J in Ogawa v The University of Melbourne (No 2).
[106]In Spalla v St George Motor Finance Ltd (No 8), Kenny J said:
From time to time the courts overcome their reluctance to order indemnity costs against a self-represented litigant: see, for example, Bhagat v Global Custodians and Ogawa v The University of Melbourne (No 2).
[107]Further in Salfinger v Niugini Mining (Australia) Pty Ltd (No 4) [2007] FCA 1594], Heerey J said as follows:
In Spalla v St George Motor Finance Ltd (No 8), Kenny J recently noted that courts have from time to time overcome a reluctance to order indemnity costs against self-represented litigants: Bhagat v Global Custodians and Ogawa v The University of Melbourne (No 2). Kenny J considered the competing interests in determining whether to make an award of indemnity costs against a self-represented litigant. A lack of knowledge of the law, unfamiliarity with court practice and a lack of objectivity are common traits of unrepresented litigants. A person’s ability to redress should not depend on lawyerly skills or an ability to pay for legal representation. However, the Court owes a duty to all parties to ensure that the trial is conducted in a fair and timely fashion and without significant difficulties and unnecessary expense for the parties against whom an unrepresented litigant proceeds: see Bhagat v Royal and Sun Alliance Life Assurance Australia. In this instance the expense, delay and difficulties caused by the appellant’s fraudulent and unreasonable behaviour overshadow any limitations that arose from his status as self-represented.
Having reviewed the authorities, his Honour concluded that there ought be an order that part of the costs of the proceeding be paid on an indemnity basis:25
At [108]-[109]. Referred to with approval by Hargrave AJA with whom Warren CJ agreed in Vink v Tuckwell (2008) 68 ACSR 265 at [43].
[108]In this case, I take into account Mr Vink’s lack of knowledge of the law, an unfamiliarity with court practices and a lack of objectivity as an unrepresented litigant. On the other hand, Mr Vink was not seeking redress for himself, nor did he have any other interest in seeking the orders that he did. I accept that there has been a reluctance on the part of courts to order indemnity costs against self-represented litigants, however in the circumstances of this case I feel that Mr Vink should not be excused from such an order it is otherwise warranted.
Conclusion
[109]After considering all the matters submitted to me, I believe that Mr Tuckwell has established special circumstances that entitle me to depart from the usual order as to costs and to award costs on an indemnity basis. In my discretion I believe it is just, fair and reasonable that Mr Tuckwell be indemnified for his costs. I have taken into account all the matters referred to above including the fact that M Vink’s complaints against Mr Tuckwell were without substance, his continuing the proceedings after Dodds-Streeton J had warned him of the weakness of his case and the material he relied on and after I found that his proceeding would very likely fail, that he suggested that an inquiry may find dishonesty on the part of Mr Tuckwell where there were no reasonable grounds for suggesting dishonesty, the delays through his reliance on inadequate evidence and his having no interest in the liquidation whatsoever.”
Applying what the court had to say in Macedon Ranges, in my view this is an appropriate instance where an order should be made that Mr Theo pay the respondent’s costs on an indemnity basis even though Mr Theo is self-represented. In my view, Mr Theo cannot be classified as a self-represented litigant bringing a case against a government agency on strongly held, but ill-founded, grounds. It is inconceivable that Mr Theo was not keenly aware of exactly what he was doing at all stages of this litigation. His material shows a ready willingness to refer to Queensland Legislation and court authorities. Mr Theo had no hesitation in bringing forward allegations of misconduct against officers of the respondent, and indeed the legal representative of the respondent. Perhaps Mr Theo did not appreciate that, by bringing the question of credit squarely into focus, he completely opened himself up for attack by the respondent on the issue of credit, an attack which resulted in Mr Theo being found severely wanting. That point however cannot excuse the fact that Mr Theo chose to make unwarranted assertions in the first place. Mr Theo’s lack of legal training also cannot assist in circumstances where he has previously agitated precisely the same grounds of appeal and has had those grounds dismissed by both the Land Court and the Land Appeal Court.
In short, Mr Theo’s conduct is precisely the type of conduct which a court should discourage by the awarding of indemnity costs. I order accordingly.
Respondent’s Rule 440(c) application
The respondent in his submissions of 27 October 2010 asserts that various statements made by Mr Theo in his affidavit sworn 15 October 2010 should be struck out pursuant to r 440(c) of the UCPR. Rule 440 of the UCPR provides as follows:
“[r 440] Scandal and oppression
440 If there is scandalous or oppressive matter in an affidavit, the court may order that —
(a)the affidavit be removed from the file; or
(b)the affidavit be removed from the file and destroyed; or
(c) the scandalous or oppressive matter in the affidavit be struck out.”
In addition to his submissions that certain parts of Mr Theo’s affidavit of 15 October should be struck out, the respondent also seeks that various submissions and attachments provided by Mr Theo should also be struck out for reasons including that they are “deceitful, mischievous and misleading”.[19]
[19] Submissions 27 October 2010 paragraph 9.
The respondent has not brought any formal application before the court seeking orders that specific parts of Mr Theo’s affidavit or other parts of his submissions and attachments should be struck out. The submissions by the respondent have also not been substantiated, at least directly, by formal affidavit evidence.
Whilst it is perhaps understandable that the respondent should seek to clear the record, in my view it would be inappropriate for this court to proceed to consider the respondent’s submissions without a formal application for same being made, and for Mr Theo to have the opportunity to respond in the usual way to any such application.
I have refrained from going into detail of the various allegations raised by Mr Theo for, to do so, would simply be to take them from a court file and enshrine them into a formal decision of the court.
I decline to make the orders sought by the respondent for striking out of various statements and other material provided by Mr Theo.
Orders
1. The respondent pay the costs of the appellant incurred on and from 4 October 2010 to and including the day prior to the delivery of this decision on the standard basis.
2. All costs orders in this matter relate to Mr Theo personally and not to “Solon Theo Family Trust”.
3. Service of the respondent’s submissions as to costs was effected on Mr Theo by 21 May 2010 at the latest, and Mr Theo suffered no prejudice by service of the submissions being effected in the way that they were.
4. Mr Solon Theo pay the respondent’s costs of and incidental to the appeal in each matter on an indemnity basis, save for costs incurred on and from 4 October 2010 to and including the day prior to the delivery of this decision.
5. The court declines to make orders pursuant to r 440 of the UCPR striking out various material and evidence provided by Mr Theo.
PA SMITH
MEMBER OF THE LAND COURT
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