Toan Van Pham v Brisbane City Council

In the case of Toan Van Pham v Brisbane City Council, the applicant sought to bring an action against the Council for compensation. The Brisbane City Council applied for the applicant's claim to be struck out on the basis that the applicant had failed to comply with a court order. The applicant’s response to the order was deemed to be non-compliant, and the Council submitted that the applicant's response was also vexatious and oppressive. The court was required to decide whether the applicant's response was indeed non-compliant, and if so, whether it warranted a strike-out and what costs, if any, should be awarded.

The court found that the applicant's response did not comply with the court’s order, which mandated that a statement of facts, issues, and contentions be filed and served by a specific date. The court also noted that the applicant's attempt to incorporate by reference material already provided did not meet the requirements of the order. The court concluded that the applicant's response had a tendency to delay the fair trial of the proceeding and was not compliant with the order. However, the court did not find the response to be oppressive or vexatious, as it did not impose an undue burden on the Council other than requiring it to bring the matter to court. As a result, the court ordered the applicant's response to be struck out and awarded the Council costs on the standard basis.

The court found that while the applicant had not complied with the court’s order, there was no evidence of oppression or vexatiousness. Therefore, the court did not deem it appropriate to award indemnity costs. The court noted that Rule 171(2) of the Uniform Civil Procedure Rules makes specific provision for costs on an indemnity basis, which may make it more likely that a court will make such an order. However, in this case, the court decided that standard costs were sufficient.

The court ordered that the applicant's response be struck out and that the applicant pay the Council's costs of and incidental to the application on the standard basis. The court also noted that it was not necessary to consider the other matters raised in each party's general application, as the parties had agreed to await the court's decision on the strike-out application before proceeding further.