UCPR: 681 (1) – costs ordinarily following the event

 

Kilvington v Grigg & Ors (No. 2) [2011] QDC 37

His Honour Judge McGill extensively reviewed r. 681(1) UCPR that costs ordinarily follow the event in the context of a plaintiff who was unsuccessful. Ultimately, his Honour was not required to determine whether a defendant in such circumstances is required to pay costs for the proceeding or part of it. His Honour was however, required to determine whether the costs should be limited by reason of the conduct of the defendants during the litigation.

[37] In my view, the particular wording of the applicable Queensland rule must be kept in mind, and that it differs from the provisions in England and in other states discussed in many of the modern authorities. Accordingly, here a more traditional approach is appropriate. The effect of this is that the starting point is that costs follow the event and the question is whether there is a sufficient reason to depart from that position to any extent. In deciding whether a departure is justified in a particular case, it is important to bear in mind the fundamental principles of fairness favouring the prima facie approach stipulated by the rule, so a court will hesitate before departing from it and will depart only in unusual cases. The authorities support the view that there are reasons of principle why the court should be more reluctant to depart from the general rule in the case of a defendant who has been entirely successful in the proceeding than in the case of a plaintiff who has been successful, and that it will be a rare case where the relevant circumstances justify a departure in favour of an unsuccessful plaintiff from the prima facie position. In the present case, the plaintiff does not seek an order for costs in respect of the proceeding or part of it, so I am not put in the position of having to confront the question of whether I can break what the formidable legal trio of Sir Samuel Griffith, Sir Owen Dixon and McPherson JA regarded as a rule,10 that a successful defendant may not be ordered to pay the general costs of the proceeding.11

10 In the case of the third, a rule of practice only. In view of the later analysis of decisions like Foster

and Dicks, and the approach in Oshlack at [33-34] and [134], it may be that Oshlack by implication

overruled the decision in Hally as to whether the court had power to make such an order.

11 Despite the statements in decisions applying differently worded rules or statutory provisions, and

some reference to them, the most recent clear statement of the Court of Appeal, in Interchase (supra)

in 2002 at [87], confirmed the rule.

[57] With regard to the costs of the proceeding overall, I do not consider that this is one of those matters where the plaintiff’s decision to sue was brought about in some way by some behaviour of the defendant, and indeed the only argument advanced in this regard on the part of the plaintiff was the general assertion that he was entitled from the beginning to feel aggrieved by the attitude of the defendants. This is not one of those matters which falls into the first category of cases referred to in Ritter. Nor do I think there is any basis for saying it falls within the third category; one matter of concern in relation to the conduct of the second defendant was that there seems to have been a failure to ensure that documents provided by the plaintiff for the attention of the third defendant were actually brought to the third defendant’s attention. That, however, does not appear to have been responsible for the proceeding being brought, or to have escalated the costs of it.

[58] With regard to the second category, this is not a situation where the successful defendant’s conduct of the litigation has put the plaintiff to unnecessary legal costs, a factor which may well result in the plaintiff being relieved of some of the defendant’s costs because of considerations of fairness. Nevertheless, I do not think that that is a complete answer to the plaintiff’s complaints, particularly in relation to the failure to progress the proceeding in the first half of 2010.15 In my view there should be some modification of the costs ordered. For example, I think many of the letters written by the plaintiff were prompted by a failure on the part of the defendants’ solicitors to respond to earlier letters, and the defendant should not get the costs related to additional letters simply because of a failure of its solicitors to reply to letters to which a response was appropriate.16

[59] Overall, therefore, I think that there should be some limitation imposed on the defendants’ costs, because of the failure to progress the matter efficiently, particularly during the first half of 2010. There is no easy way to separate out rigorously the costs which ought not to be recovered, at least not without greatly complicating the process of assessment, and I would prefer to do it in a way which will be easy to apply even if that involves something of a broad brush approach. In all the circumstances, I am persuaded in this matter that there was a sufficient failure on the part of the second and third defendants’ solicitors properly to carry the matter forward, particularly in the first half of 2010, that it is appropriate to deprive the successful defendants of part of their costs, and I will do it by reference to that period. Accordingly I propose to order that the plaintiff pay the second and third defendants’ costs of and incidental to the proceeding, other than the costs incurred in January to June 2010 inclusive. I will also order that the costs reserved on 10 July 2010 not be recovered by the second and third defendants.

15 This is within one of the categories given by McHugh J in Oshlack: unnecessarily protracting the

proceedings.

16 I need to make a special order to overcome the effect of r 698.

Brisbane Barrister – David Cormack

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