Leigh v Sanchez [No 2][2025] QCA 79

SUPREME COURT OF QUEENSLAND

1. [1]
   THE COURT:  The applicant Ms Leigh brought a defamation proceeding against the respondents Mr and Mrs Sanchez in the District Court.  On 6 August 2024, the primary judge struck out certain paragraphs of the further amended statement of claim which were relied on by the applicant for a claim for aggravated damages: Leigh v Sanchez [2024] QDC 123.  The applicant prepared a second further amended statement of claim that was considered by the primary judge in determining whether leave to re-plead should be given.  On 30 August 2024 the primary judge refused the applicant leave to rely on the second further amended statement of claim and dismissed her application for leave to re-plead and the applicant was ordered to pay the respondents costs of the application.
2. [2]
   The applicant did not apply for leave to appeal the orders of the primary judge until 19 November 2024 and therefore also made an application for extension of time for leave to appeal (the Applications).
3. [3]
   By application filed in this Court on 9 December 2024, the respondents applied for an order that the applicant provide security for costs in the sum of $61,600 and also applied for the application for leave to appeal to be struck out as an abuse of process or on the basis it was frivolous or vexatious or had been improperly brought by the applicant or should be summarily dismissed pursuant to s 118(4) of the District Court of Queensland Act 1967 (Qld).
4. [4]
   The application was listed for hearing on 3 February 2025.  It was only that part of the application seeking security for costs that was heard by Mullins P on that date.  At the outset of the hearing, Mullins P indicated to the respondents’ counsel that the proceeding in the Court of Appeal was a complex matter and that it was not appropriate to deal with an application for summary dismissal at that stage of the matter in this Court.
5. [5]
   After hearing the parties on the question of whether security for costs should be ordered and for the reasons set out in Leigh v Sanchez [2025] QCA 4 (the reasons), Mullins P made the following orders:

“1. The applicant must give security for costs for the application for extension of time to appeal and the application for leave to appeal in the sum of $10,000 within 21 days of the date of this order by payment into Court of the said sum or provision of the security in such other form as the Registrar of the Court permits.

2. The extension application and application for leave to appeal are stayed so far as steps to be taken by the applicant until the security has been given as required by this order, or further order.

3. Liberty to either party to apply on three days’ written notice to the other.

4. Costs of the application filed on 9 December 2024 reserved.”

6. [6]
   The applicant was unable to provide the security within the time specified and agreed with the respondents that the Applications should be dismissed.  As the parties were unable to agree on the costs of the Applications, the following orders were made by this Court on 28 February 2025:

“1. By consent, application for extension of time to appeal and application for leave to appeal dismissed.

2. The costs of the applications to be determined on the papers.

3. The respondents must file and serve their written submissions on costs on or before 21 March 2025.

4. The applicant must file and serve her submissions on costs on or before 16 April 2025.”

7. [7]
   Both parties filed their written submissions on costs in accordance with the orders of the Court.  The applicant also filed an affidavit affirmed by her on 16 April 2025 to which objection was taken by the respondents on the basis that the Court’s order provided only for submissions to made on costs.  The Court determined that the only paragraph of that affidavit that was relevant to the determination of the costs question was paragraph 6 and invited the parties to make any further submissions on leave being given to the applicant to rely only on paragraph 6 of that affidavit.  Both parties filed further written submissions.
8. [8]
   The respondents seek an order that the applicant pay the costs of the Applications, including reserved costs.  The respondents submit that the power to order costs where a proceeding has, in effect, been discontinued is found in r 685 of the Uniform Civil Procedure Rules 1999 (Qld).  The test under r 685(2) is that the Court may make the order it considers just.  The respondents submit the applicant should pay their costs, as the applicant surrendered or capitulated to the respondents and the respondents incurred costs in connection with the Applications.  Those costs turned out to be unnecessary, as the Applications were dismissed by consent.
9. [9]
   The applicant argues that she was successful against the respondents in their strike out application of 9 December 2024 which was dismissed in its entirety which indicated that her appeal was bona fide.  She submits that the strike out application was far more substantive than the security for costs application and that the respondents’ application for security for costs was excessive and indefensible, as Mullins P noted (at [9] of the reasons) was “done on a Rolls Royce basis”.  The applicant submits that her appeal was stultified by the security for costs order in the amount of $10,000 and was not dismissed through “want of legitimacy”.  The applicant emphasises that she was forced into a situation of withdrawing her appeal due to a lack of finances which she had foreshadowed with the Court during the hearing on 3 February 2025.
10. [10]
    Leave is given to the applicant to rely on paragraph 6 of her affidavit affirmed on 16 April 2025 which accompanied her written submissions, as that paragraph dealt with an offer made to the respondents about costs of the Applications.  The applicant refers in paragraph 6 to her email to the respondents’ solicitors on 26 February 2025 that proposed that the respondents should not make a claim for costs, as the costs of assessing such a small amount of costs for a hearing lasting 30 minutes would be greater than the costs award itself.  She did not receive a response to that email.
11. [11]
    The applicant’s ultimate submission was that she was more successful than the respondents in the application filed on 9 December 2024 and should not be further penalised based on being self-represented and ordered to pay the respondents’ costs of one part of the application when she was successful on the other part.  The applicant submits there should be no order as to costs for the security for costs application and that otherwise the respondents had not incurred any substantial costs in the appeal, as the hearing of the application filed on 9 December 2024 preceded any preparation for the substantive appeal.
12. [12]
    The costs of the application filed on 9 December 2024 were reserved and the order made on 28 February 2025 anticipates that the parties will make submissions in respect of the costs of the Applications (which extends to the costs reserved of the application filed on 9 December 2024).
13. [13]
    The applicant’s submissions focus on the application filed on 9 December 2024 when the question of costs to be determined after the dismissal of the Applications is all costs in connection with the Applications.  Despite the applicant’s assertion that the proceeding in this Court was at a preliminary stage, when a party commences a proceeding in this Court and serves the proceeding on a respondent, costs are usually incurred by a respondent in having lawyers peruse the initiating document, advise on the actions that the respondent should take in response to being served with a proceeding in this Court and the steps that are then taken by the respondent.  The applicant’s admitted impecuniosity made it likely that she would be requested by the respondents to provide security for costs when she filed the Applications in this Court.  This Court should not assume that the respondents did not undertake any of the usual steps on being served with the Applications before the applicant consented to their dismissal.  The reasonableness of the steps taken by the respondents and the costs accordingly incurred can be questioned on any assessment of the standard costs.
14. [14]
    The applicant is incorrect in describing the outcome before Mullins P on 3 February 2025 as the dismissal of the strike out application.  As explained in [4] above and recorded at [6] of the reasons, all that happened in relation to the relief of summary dismissal that was sought in the application filed on 9 December 2024 was that Mullins P did not consider it was appropriate to deal with that part of the application at that stage of the matter.  That is not equivalent to dismissal.
15. [15]
    The applicant also misunderstands as to what costs are incorporated in an order for costs.  The mere fact that the hearing on 3 February 2025 may have taken 30 minutes or so does not preclude costs that preceded the hearing that were incurred for the purpose of the hearing and the preparation of lawyers for the hearing.  The applicant’s email sent on 26 February 2025 is therefore not a relevant factor in determining the question of costs of the Applications.
16. [16]
    The quantum of costs ordered by way of security by Mullins P was a modest sum of $10,000.  The reference in the reasons at [9] to the respondents’ calculation of the estimate of costs for the purpose of security been done “on a Rolls Royce basis” is a reference to the items allowed for in the estimate and not the work that was undertaken for the purpose of preparing the affidavit in support of the application.
17. [17]
    It is relevant, though, that the application filed on 9 December 2024 was premature in seeking the summary dismissal of the Applications.  Because the respondents succeeded in obtaining the order for security for costs, it is appropriate that there be an order for costs in respect of that part of the application filed on 9 December 2024 in favour of the respondents.  Subject to that qualification, the fact that the applicant is impecunious is not a reason not to make a costs order against her, when she acceded to the dismissal of the Applications because she could not provide the amount ordered for security for costs.
18. [18]
    The orders which should be made are:

1. Leave given to the applicant to rely on paragraph 6 of her affidavit affirmed on 16 April 2025.
2. The applicant must pay the respondents’ costs of the application for extension of time to appeal and application for leave to appeal including reserved costs, except for the costs of the application filed on 9 December 2024 that relate to the relief sought other than for security for costs.