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Queensland Judgments
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  • Unreported Judgment

Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc (No 2)

 

[2020] QSC 277

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc (No 2) [2020] QSC 277

PARTIES:

JAMES BOYD THOMPSON

(plaintiff)

v

CAVALIER KING CHARLES SPANIEL RESCUE (QLD) INC

(first defendant)

LAURENCE JOHN PITTS

(second defendant)

KATHERINE LEPELAAR

(third defendant)

BEVERLEY ANN HUSH

(fourth defendant)

FILE NO:

BS No 9148 of 2013

DIVISION:

Trial Division

PROCEEDING:

Application (costs)

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

11 September 2020

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Davis J

ORDER:

The plaintiff pay the first defendant’s costs of the application including the costs reserved by Williams J on 4 March 2020 on the standard basis.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW EVENT – GENERAL PRINCIPLES AND EXERCISE OF DISCRETION – where the first defendant made application to strike out certain parts of the statement of claim – where the first defendant was successful in all parts of its application that it pressed – where the first defendant seeks its costs on the standard basis apart from the costs of an adjournment of the application which it seeks on the indemnity basis – where the plaintiff submits that the costs ought not follow the event as the application was delayed and the doctrine of res judicta operated as to bar the first defendant from proceeding with its application – whether costs ought to follow the event – whether the costs of the adjournment ought to be paid on the indemnity basis

Uniform Civil Procedure Rules 1999, r 5, r 681

Aklia Holdings Pty Ltd v The Carter Group Pty Ltd (in liq) & Ors (No 2) [2017] QSC 266, followed

Calderbank v Calderbank [1975] 3 WLR 586, cited

Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44, cited

Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225, followed

Seabrook v Allianz Australia Insurance Limited & Ors [2005] QCA 58, cited

Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc [2020] QSC 234, cited

SOLICITORS:

ACLG Lawyers for the first defendant/applicant

Mr Thompson for himself

  1. [1]
    On 13 August 2020, I ordered that paragraphs of the plaintiff’s claim and paragraphs of his fifth amended statement of claim be struck out.[1]  I gave the parties leave to make written submissions on the question of costs of the application with the decision on costs to be made without further oral argument.  Those written submissions have now been filed.
  2. [2]
    The first defendant seeks:
    1. (a)
      the costs of the application on the standard basis, apart from;
    2. (b)
      the costs of an adjournment of the application which it seeks on the indemnity basis.
  3. [3]
    As to the principal application:
    1. (a)
      The first defendant sought:
      1. the striking out of paragraphs 2 to 9 of the plaintiff’s amended claim filed on 24 June 2016;
      2. the striking out of each of paragraphs 114 to 120 (both inclusive) of the plaintiff’s fifth amended statement of claim;
      3. the striking out of the word “defamatory” as it appeared in certain paragraphs; and
      4. the delivery of certain particulars in relation to paragraphs 1, 26, 41, 63 and 85 of the fifth amended statement of claim.
    2. (b)
      The first defendant did not press an order that paragraph 117 of the fifth amended statement of claim be struck out.[2]
    3. (c)
      The first defendant did not press its application for the striking out of the word “defamatory” as it appeared in the fifth amended statement of claim.
    4. (d)
      The first defendant did not seek the delivery of the particulars of paragraphs 1, 26, 41, 63 and 85 of the fifth amended statement of claim.
    5. (e)
      The first defendant was successful in all that part of its application that it pressed, namely the striking out of paragraphs 2 to 9 of the amended claim and the striking out of paragraphs 114 to 116 and 118 to 120 (all inclusive) of the fifth amended statement of claim.
  4. [4]
    The circumstances of the adjournment were as follows:
    1. (a)
      The application was filed on 26 February 2020 returnable on 4 March 2020.
    2. (b)
      Late in the afternoon on 26 February 2020, the plaintiff emailed the associate of the senior judge in Applications (Justice Boddice) advising that he could not appear on the application on 4 March 2020.  There was no explanation in the email as to why that was so.  The email to his Honour’s associate was sent before the application was served.  The email had also been forwarded to the first defendant’s solicitors.
    3. (c)
      Later in the evening of 26 February 2020, the first defendant’s solicitors served the application and at the same time pointed out to the plaintiff that he had not explained to Boddice J’s associate why he could not appear on 4 March 2020.
    4. (d)
      In the afternoon of 27 February 2020, Boddice J’s associate emailed the plaintiff advising that his Honour’s view was that any application for adjournment should be determined when the application came before the court on 4 March 2020.
    5. (e)
      In the afternoon of 2 March 2020, the plaintiff forwarded to the first defendant’s solicitors consent orders for the adjournment.  They provided that the costs of the adjournment be reserved.  No reason was offered at that point as to why the matter had to be adjourned.  As already observed, no reason had been offered to Boddice J’s associate.
    6. (f)
      About an hour later, the first defendant’s solicitors emailed the plaintiff pointing out that no reason had been given by the plaintiff as to why an adjournment was necessary.
    7. (g)
      The next day, the plaintiff emailed the Applications Manager saying that he was unable to appear on 4 March because of a prior appointment.  A copy of that email was forwarded by the plaintiff to the first defendant’s solicitors.  The only information which was volunteered by the plaintiff as to the nature of the commitment was that it was a “… prior, inflexible commitment in Ipswich at 10.00 am”.
    8. (h)
      The next afternoon, at 2.22 pm, the first defendant sent an email to the plaintiff offering to consent to adjourning the application on condition that the plaintiff pay the first defendant’s costs thrown away fixed at $1,100.  That offer was made consistently with the Calderbank[3] principles.
    9. (i)
      A little over an hour later, the first defendant’s solicitors wrote another email to the plaintiff saying that the offer had expired and that the first defendant would proceed with the application the next day.
    10. (j)
      The matter then came before Williams J in the Applications List.  The first defendant appeared through counsel and the plaintiff did not appear at all.  Williams J adjourned the application.
  5. [5]
    As to the costs of the application, the first defendant says that it was substantially successful and relies on r 681 of the Uniform Civil Procedure Rules 1999 (UCPR) which provides that costs follow the event unless the court otherwise orders.  Consistently with the exercise of any judicial discretion, the court may only “otherwise order” if there is a reason to do so.[4] 
  6. [6]
    As to the costs of the adjournment, the first defendant says that it appeared before Williams J on 4 March 2020 in circumstances where, had the plaintiff not acted unreasonably, it would not have had to appear.  On that basis, costs thrown away by the adjournment are sought on the indemnity basis.
  7. [7]
    The plaintiff, in his written submissions, defends the costs application on two bases, namely:
    1. (a)
      The application was made years after the pleading was filed.  He submits that this delay is conduct in breach of the philosophy in r 5 of the UCPR.
    2. (b)
      Given the history of previous applications described in the principal judgment,[5] the plaintiff reasonably considered that the doctrine of res judicata operated so as to bar the first defendant from proceeding with its application.
  8. [8]
    The plaintiff’s submission that the first defendant ought not receive its costs of the application because of delay in bringing the application has a hollow ring.  The plaintiff, by virtue of his status as plaintiff, has carriage of the proceedings.  The proceedings were started in 2013, some seven years ago.  The current pleading is the sixth version of the pleading, being the fifth amended statement of claim.  As long ago as 24 March 2016 (now well over four years ago), Dalton J observed that paragraphs of a previous version of the plaintiff’s pleading, similar to ones I have just ordered to be struck out “… do not disclose any basis for the award of damages known to the law”.[6]  Her Honour, though, chose, on discretionary bases, not to strike out the allegations.
  9. [9]
    In my view, it was perfectly reasonable for the first defendant to bring the application.
  10. [10]
    The doctrine of res judicata does not operate in the way the plaintiff asserts.  The first defendant brought applications to strike out earlier versions of the pleading.  The paragraphs were not struck out on discretionary bases.  Given that the plaintiff has still not prosecuted the proceedings to trial, yet persists with claims for damages that are not sustainable, the first defendant was at liberty to bring the further application.
  11. [11]
    In the email to my associate which attached his written submissions, the plaintiff said “I have also attached some authority excerpts regarding status and wounded feelings of which his Honour may not be aware”.  There are causes of action, defamation being one of them,[7] and malicious prosecution being another,[8] which may result in damages for injured feelings or damaged reputation.  The plaintiff’s claim, though, is for damages for breach of contract.  As explained in the principal judgment,[9] disappointment, distress, “hurt feelings” or loss of status are only compensable in breach of contract cases in limited circumstances which do not prevail here.  The plaintiff must come to grips with the fact that he has been unable to plead a case for anything beyond nominal damages. 
  12. [12]
    In my view, no reason has been shown why costs should not follow the outcome of the application.  The first defendant was successful and the plaintiff should pay the costs of the application.
  13. [13]
    The plaintiff resists an order for costs of the adjournment on the basis that the first defendant’s attendance at the court on 4 March 2020 was unnecessary.  This, he says, is because he had informed both the court and the first defendant that he was unavailable and had proposed alternative dates.
  14. [14]
    In his written submissions, the plaintiff submits:

“11. Justice Williams’ order of 4 March 2020 reserved the costs. Her Honour’s decision to adjourn was consistent with my request that the hearing be adjourned to a day that I would be available which had been conveyed to her Honour by email. To that degree, it was me, the plaintiff, who was successful on that day.”

  1. [15]
    I would reject that submission and describe the situation completely differently.  The first defendant, as it was entitled to do, decided to bring an application to strike out parts of the plaintiff’s pleading and claim.  It set the matter down, as it was entitled to do, on 4 March 2020.  The plaintiff asserted that he was not available on that day but never offered any proper explanation as to why he was not available despite having the opportunity to do so.  Ultimately, he chose not to appear leaving Williams J with really no alternative but to adjourn the application.
  2. [16]
    In those circumstances, the first defendant should have its costs of the adjournment.  The plaintiff submits that if he is to pay the costs of the adjournment, it ought not be on the indemnity basis.  He rightly points to the fact that the usual order is that costs are ordered to be assessed on the ordinary basis and some egregious behaviour or improper conduct must be present to justify an indemnity costs order.[10]
  3. [17]
    The plaintiff submits that I should disregard the Calderbank offer.  He submits that it was unreasonable to expect a response to that offer within an hour.  I accept the plaintiff’s submission about the Calderbank offer. 
  4. [18]
    However, the plaintiff has acted quite improperly.  He effectively simply asserted that the application could not be heard on 4 March 2020.  Given that the first defendant had the right to set the application down for hearing on that date, it was entitled to some explanation as to why the application could not reasonably proceed then.  The plaintiff made no attempt to offer such an explanation.
  5. [19]
    The plaintiff’s behaviour is such as to raise the discretion to award costs of the adjournment on the indemnity basis.  However, it seems likely that the plaintiff did have a commitment on 4 March 2020 such that he could not appear on the application on that day.  He did advise the solicitors for the first defendant that that date was unacceptable to him.  That advice was given even before the application was served.
  6. [20]
    On balance, the plaintiff should pay the first defendant’s costs of the adjournment on the standard basis.
  7. [21]
    I order that the plaintiff pay the first defendant’s costs of the application including costs reserved by Williams J on 4 March 2020 on the standard basis.

Footnotes

[1] Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc [2020] QSC 234.

[2]  The plaintiff delivered particulars of paragraph 117 of the fifth amended statement of claim.

[3] Calderbank v Calderbank [1975] 3 WLR 586.

[4] Aklia Holdings Pty Ltd v The Carter Group Pty Ltd (in liq) & Ors (No 2) [2017] QSC 266.

[5] Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc [2020] QSC 234 at [11] and [21].

[6]  Dalton J, unreported, 24 March 2016, pages 2-3, set out at Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc [2020] QSC 234 at [26].

[7] Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44.

[8] Seabrook v Allianz Australia Insurance Limited & Ors [2005] QCA 58.

[9] Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc [2020] QSC 234 at [28]-[31].

[10]  Plaintiff’s written submissions, paragraph 6, relying upon various authorities including the judgment of Sheppard J in Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225.

Close

Editorial Notes

  • Published Case Name:

    Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc (No 2)

  • Shortened Case Name:

    Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc (No 2)

  • MNC:

    [2020] QSC 277

  • Court:

    QSC

  • Judge(s):

    Davis J

  • Date:

    11 Sep 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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