Woodley v Woodley [No 7] - [2018] WASC 381

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   WOODLEY -v- WOODLEY [No 7] [2018] WASC 381
CORAM:   ALLANSON J
HEARD:   19 OCTOBER 2018
DELIVERED          :   19 OCTOBER 2018
FILE NO/S:   CIV 2080 of 2013
BETWEEN:   TERRY RAY WOODLEY
Plaintiff

AND

ROSS MAXWELL WOODLEY
First Defendant

ROSS MAXWELL WOODLEY and RAYMOND THOMAS WOODLEY As Executors of the Estate of the Late Shirley Grace May Woodley
Second Defendants

Catchwords:

Costs - Application for indemnity costs - Where plaintiff unrepresented - Whether hopeless case brought for ulterior purpose - Where plaintiff failed to comply with pre-trial orders

Legislation:

Legal Profession (Supreme Court) (Contentious Business) Determination 2016 (WA)
Rules of the Supreme Court 1971 (WA), O 66 r 13

Result:

Indemnity costs orders made

Category: B

Representation:

Counsel:

Plaintiff	:	In person
First Defendant	:	Mr P G Donovan & Ms H J Burnside
Second Defendants	:	Mr C R Bailey

Solicitors:

Plaintiff	:	In person
First Defendant	:	MDS Legal
Second Defendants	:	Williams and Hughes

Case(s) referred to in decision(s):

Civil Properties Pty Ltd v Miluc Pty Ltd [2011] WASCA 195
Quancorp Pty Ltd v MacDonald [1999] WASCA 101
Woodley v Woodley [No 2] [2017] WASC 94

ALLANSON J:

(These reasons were given orally on 19 October 2018 and have been edited from the transcript).

The first defendant, Ross Woodley, seeks an order against the plaintiff, Terry Woodley, for costs on an indemnity basis or, in the alternative, special costs orders whereby the limits and hourly rates under the Legal Profession (Supreme Court) (Contentious Business) Determination 2016 (WA) would be lifted.
The indemnity costs order is sought on several grounds:
(1)the plaintiff commenced and persisted in the action when, on a proper consideration, it should have been seen to be a hopeless case;
(2)that he commenced the action for improper purposes, being to engage in an inquisition against Ross and to attempt to redress grievances as perceived inequalities of treatment by his parents during their lifetimes;
(3)that he made baseless allegations of fraud and impropriety against Ross and others in the action.
(4)the plaintiff acted improperly and/or unreasonably such that the costs of the action were unnecessarily increased; and
(5)the plaintiff unreasonably rejected a reasonable offer of settlement.
I am not taking the offer of settlement into account. It does not arise on the way in which I approach this matter.
The principles relating to an award of indemnity costs relevantly for the present matter was set out by Justice Newnes in Civil Properties Pty Ltd v Miluc Pty Ltd. His Honour said:
It's well established that a court has a wide discretion as to costs. Whether or not an order for indemnity costs is appropriate must depend upon the facts of the particular case. There are not, and cannot be, any hard and fast rules. But an indemnity costs order is a departure from the usual order that costs are awarded on a party and party basis.
Ordinarily an indemnity costs order is appropriate only where the unsuccessful party has been involved in some unreasonable conduct in relation to the proceedings such as where the institution or continuation of the proceeding was plainly unreasonable or the proceeding was issued or maintained for an ulterior or collateral purpose. An order for indemnity costs reflects the court's disapproval of the conduct of the unsuccessful party.
If a party brings a case which is hopeless it can normally be inferred that the proceeding was commenced or continued for some ulterior motive or because of some wilful disregard of the known facts or clearly established law, but it is not necessary that such an inference be drawn. It is sufficient that the court's resources and the successful party's costs have been wasted on an entirely frivolous litigation.[1]
[1] Civil Properties Pty Ltd v Miluc Pty Ltd [2011] WASCA 195 [82] ‑ [83] (citations omitted).
I interpose that, with a litigant in person, the inference that a hopeless case was commenced for an ulterior motive may not always be the case. The facts leading to that inference may be countered by the lack of legal knowledge and training and, importantly, objectivity of a litigant in person. Returning to what Justice Newnes said:
However, while indemnity costs may be awarded where an action has been commenced or continued in circumstances where the plaintiff, properly advised, should have known that the action had no prospect of success, a court must not be too ready to find that a case was hopeless.[2]
[2] Civil Properties Pty Ltd v Miluc Pty Ltd [84].
His Honour then quoted the passage from Quancorp Pty Ltd v MacDonald.[3]Mr Woodley referred to it in his submissions. In particular, it is inappropriate that a case be too readily characterised as hopeless so as to justify an award of indemnity costs. And Newnes J concluded:
It must also be borne in mind that what is apparent at the end of a trial may not have been so obvious beforehand. Whether or not a case was hopeless is not to be determined with the benefit of hindsight.[4]
[3] Quancorp Pty Ltd v MacDonald [1999] WASCA 101 [7] (Wheeler J).
[4] Civil Properties Pty Ltd v Miluc Pty Ltd [85].
Turning then to my findings in the present matter, they are these. The plaintiff represented himself, and it is necessary to make some allowances. In part, a litigant in person cannot bring the objectivity to bear of an impartial legal practitioner. It is not just a matter of expertise or legal knowledge, but it is a matter of being too close to the subject matter of the proceedings and lacking the necessary objectivity to make sound judgments.
I also take into account that the plaintiff was, concurrently with this action, pursuing other claims including the appeal in the Estate claim.[5]
[5] CACV 46 of 2017; Woodley v Woodley [No 2] [2017] WASC 94 (the estate proceedings)
I also make the following findings.
First, this case was hopeless. That might not have been apparent from the outset. Mr Woodley was represented at the commencement of the action, and I intend no criticism of the practitioners who were first involved. The statement of claim, as originally drafted, set forward a case which was marginal but not misconceived. My characterisation of the plaintiff's case changes from when he amended the case to allege fraud. At the latest, when preparing for trial, the plaintiff should have understood that his case was hopeless. Indeed, in my opinion he should have understood at that stage that he did not know what his fraud case was.
Second, the plaintiff alleged fraud against the first defendant with no support in the evidence. At trial, the plaintiff was still trying to find a case to justify the allegation. Fraud is a serious charge. Had a legal practitioner been responsible for persisting in that plea on the evidence the plaintiff had, I would have regarded it as conduct falling outside proper professional standards.
Third, it is appropriate to mark the disapproval of the court to the conduct of this plaintiff leading up to trial. He did not comply with pre‑trial orders with regard to witness statements, expert evidence or trial documents. His explanation for non-compliance was not convincing. I commented in the main reasons on that explanation and why I rejected it. A lot of time was spent at trial dealing with evidentiary issues caused by late filing.
Finally, I refer to the correspondence, from which I included extracts in the main reasons, and which was discussed briefly in submissions with Mr Woodley this afternoon. I accept, of course, that is always a matter of context, but one cannot help being disturbed by these statements:
I will bury you in paperwork and this estate will go nowhere for years. I have the financial, technical and professional resources at my disposal.[6]
[6] Exhibit 32, 308.
That was one letter. And another one:
I will pursue all matters to my complete satisfaction. For those of you who underestimate my abilities and resolve do so at their own peril. All matters could have been settled a year ago but this continual denial of the factual events and bullshitting has only hurt each of you. Time is on my side, after all, I'm the baby of the family.[7]
[7] Exhibit 32, 377.
And then the last of them in time:
If your client wants to continue his stance then I can get a caveat just like that. Nothing will go nowhere for years. The whole matter can get as nasty and prolonged as your client desires. I can accommodate your client's every desire in that respect.[8]
[8] Exhibit 19.
The inference of some ulterior motive or wilful disregard of the known facts may not necessarily be drawn from a pleading which has been put together by somebody without legal knowledge and training, but the inference in this case is reinforced by the plaintiff's own words.
The weakness of the plaintiff's case and his unsubstantiated allegation of fraud, on their own, may not have justified an order for indemnity costs. I am conscious of the difficulty for a self-represented litigant, even one who is well educated and with some experience in the courts. But, taking all of the matters together, in my opinion, the court should order indemnity costs for the preparation for trial and the trial together with the application following trial to adduce further evidence. The proper time, in my opinion, from when indemnity costs should be ordered is the first time when this matter was being programmed for trial. The appropriate time, in my opinion, is 2 August 2017 when the matter, having come into my list, began to move towards trial.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ZW
ASSOCIATE TO THE HONOURABLE JUSTICE ALLANSON
7 DECEMBER 2018