Venn v Bendigo Bank Limited (No 4)
[2007] QDC 332
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- Unreported Judgment
- Venn v Bendigo Bank Limited (No 4)[2007] QDC 332
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Venn v Bendigo Bank Limited (No 4)[2007] QDC 332
Venn v Bendigo Bank Limited (No 4)[2007] QDC 332
DISTRICT COURT OF QUEENSLAND
CITATION: | Venn & Anor v Bendigo Bank Limited (No 4) [2007] QDC 332 |
PARTIES: | STUART VENN and JUDITH VENN (TRUSTEES FOR THE S & J VENN FAMILY TRUST) Plaintiffs/Respondents v BENDIGO BANK LIMITED ABN 1106804918 Defendant/Applicant |
FILE NO/S: | D387/2004 |
DIVISION: | Civil |
PROCEEDING: | Costs application |
ORIGINATING COURT: | District Court of Queensland at Maroochydore |
DELIVERED ON: | 12 December 2007 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 6 December 2007 |
JUDGE: | Alan Wilson SC, DCJ |
ORDER: | 1 that the plaintiffs pay the defendant’s costs of and incidental to the plaintiffs’ application filed 26 November 2007, assessed on an indemnity basis 2 that all parties have liberty to apply in respect of the first order on seven days’ notice in writing |
CATCHWORDS: | COSTS ASSESSMENT OF COSTS unsuccessful application – post-trial – for further disclosure and other relief whether costs follow event basis of assessment whether costs should be paid by Counsel Uniform Civil Procedure Rules 1999, rr 685, 689, 704 Cases considered: Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 Currie & Co v Law Society [1977] QB 990 Davy-Chiesman v Davy-Chiesman [1984] Fam 48 Di Carlo v Dubois [2002] QCA 225 Edwards v Edwards [1958] P 235 Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 Mauroux v Soc Com Abel Pereira Da Fonseka and SARL [1972] 1 WLR 962 Michael v Freehill Hollingdale & Page (1990) 3 WAR 223 Monitronix Ltd v Michael (1992) 7 WAR 195 Myers v Elman [1940] AC 282 Orchard v Southeastern Electricity Board [1987] QB 565 Steindel Nominees Pty Ltd v Laghaifar [2003] QCA 49 Venn & Anor v Bendigo Bank Limited (No 2) [2007] QDC 266 Venn & Anor v Bendigo Bank Limited (No 3) [2007] QDC 325 White Industries (Qld) Pty Ltd v Flower & Hart (1998) 156 ALR 169 |
COUNSEL: | T Macklin for Plaintiffs/Respondents D P de Jersey for Defendant/Application |
SOLICITORS: | Plaintiffs/Applicants self-represented Middletons Solicitors for Defendant/Respondent |
- [1]On 6 December 2007 I delivered judgment in Venn & Anor v Bendigo Bank Limited (No 3) [2007] QDC 325, dismissing the plaintiffs’ application filed 26 November 2007. The successful defendant then sought the costs of the application assessed on an indemnity basis and in a specified sum, particulars of which were set out in an affidavit from its solicitor. It also, unusually, sought an order that the costs be paid personally by the plaintiffs’ Counsel.
- [2]As the judgment shows, the plaintiffs’ application was for further disclosure and other wide-ranging relief, and was entirely unsuccessful. The Uniform Civil Procedure Rules 1999 incorporate the long established principle that, while costs always remain within the discretion of the Court, they will usually follow the event unless the Court considers another order is appropriate: r 689.
- [3]Submissions from the plaintiffs’ Counsel that his clients were partially and significantly successful in their application because they obtained documents said to be of assistance in their case ignores the fact that, as I was satisfied the evidence showed, those documents had previously been disclosed by the defendant.
- [4]The submission also appears to rest on a proposition which I have rejected in both post-trial applications in this matter namely, that elements of certain documents plainly reveal some sinister, deceptive, dishonest or misleading conduct on the part of the defendant Bank.
- [5]That is not to say such conduct, or something of similar ilk, could never have occurred that is a question of which some elements are in issue in the trial itself (and which, I hope, can now be addressed in a final judgment) but I have not been persuaded in either of the plaintiffs’ post-trial applications that the documents upon which they place so much emphasis have that plain effect, or exhibit those properties.
- [6]The usual order should therefore follow and the plaintiffs should pay costs. The next question is whether the costs should be assessed on the standard, or indemnity, basis.
- [7]As White J observed in Di Carlo v Dubois [2002] QCA 225 at [35], the rule[1] which permits assessment on an indemnity basis does not give guidance as to when an order of that kind might be made; and, as in that case, the particular instances mentioned in UCPR r 704(2) are of no or little assistance here. As her Honour went on to remark there are, however, two decisions which are regularly cited when the question arises: Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225, and Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397.
- [8]White J helpfully, with respect, summarised the effect of these decisions when she went on to say, in Di Carlo v Dubois, at [37]:
… there needs to be some special or unusual feature in the case to justify a Court departing from the ordinary practice…. The making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud; misconduct that causes loss of time to the Court and the other parties; the fact that the proceedings were commenced at or continued for some ulterior motive: or in wilful disregard of known facts; or clearly established law; the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contingents; the imprudent refusal of an offer to compromise; and costs against a contemnor.
- [9]As my Reasons of 6 December and the earlier judgment in the plaintiffs’ other post-trial application[2] show, both were unmeritorious and unduly prolonged litigation in the face of and in disregard of known facts. That was found to be a sufficient basis for an award of costs on an indemnity basis by Davies JA (with whom William JA and Philippides J agreed) in Steindel Nominees Pty Ltd v Laghaifar [2003] QCA 49. Each of the plaintiffs’ two applications here can fairly be described in similar terms. The most recent, second application was referred to in the judgment as pointless, and ill-advised. Those circumstances are persuasive that this is, indeed, an appropriate case in which to order that costs be assessed on an indemnity basis.
- [10]The next question concerns the claim that the costs be paid personally by the plaintiffs’ Counsel. The application is made on two grounds: first, that Counsel made unsupported allegations of fraud in his second application which had previously been rejected, with an order for indemnity costs, on 9 November 2007 and were hopeless, and bound to fail; and, secondly, that he made unsupported allegations of misconduct on the part of the defendant’s solicitors and Counsel in alleging that the plaintiffs’ and Counsel were misled by the defendant’s disclosure.
- [11]It was found, at paragraph [19] of the judgment in the second application, that it largely involved a mere reformulation of the allegations in claims made in the first. The additional allegations about disclosure were, it was also found, irrelevant to any relief the plaintiffs could have hoped to obtain on the application and were bound to fail. They involved, too, oral submissions from Counsel for the plaintiffs which could fairly be described as containing unsupported allegations of misconduct against the defendant’s Counsel, to which successful objection was taken.
- [12]The cases to which I was helpfully referred by Counsel for the defendant generally suggest that a lawyer’s conduct must be quite bad before an order will be made that the lawyer pay costs personally. As Goldberg J explained in White Industries (Qld) Pty Ltd v Flower & Hart (1998) 156 ALR 169 at 229, the primary object of the jurisdiction to order costs against lawyers representing parties is to reimburse a party to proceedings for costs which that party has incurred because of a default of the practitioner and in that sense the jurisdiction is compensatory, rather than punitive or disciplinary: Myers v Elman [1940] AC 282 at 289 and 319[3]; Davy-Chiesman v Davy-Chiesman [1984] Fam 48 at 59, 60; Edwards v Edwards [1958] P 235 at 248; Orchard v Southeastern Electricity Board [1987] QB 565, at 571; Michael v Freehill Hollingdale & Page (1990) 3 WAR 223, at 233; and Monitronix Ltd v Michael (1992) 7 WAR 195 at 201.
- [13]The jurisdiction was said, in Myers v Elman, to be enlivened when a practitioner has conducted him- or herself in such a manner that the conduct involves a failure on the part of the lawyer to fulfil his or her duty to the Court. In the same case Lord Wright said that a mere mistake or error of judgment is not, however, generally sufficient but a “… gross neglect or inaccuracy in a manner which it is a solicitor’s duty to ascertain with accuracy may suffice”. As Goldberg J also remarked, what amounts to a serious dereliction of duty will vary from case to case and there are many variations, his Honour said, on this theme.
- [14]A particular feature of the present case is that, in light of the history of the action, it is not improbable that the matters complained of occurred pursuant to specific instructions from the plaintiffs themselves. Counsel was directly briefed by them for the trial, and subsequently. They have appeared on their own behalf at various times throughout the proceeding, and plainly taken an active role. While a lawyer has a plain duty to the Court which extends to an obligation to give reasonable attention to the relevant law and facts, the compensatory nature of the jurisdiction might be said to militate against an order where there is at least a possibility that the lawyer was acting on instructions, however wrong or misguided.
- [15]There will in some cases come a point, of course, where the lawyer’s duty to the Court would oblige him or her to decline instructions. In a case like this, where the clients are plainly deeply immersed in the litigation and have engaged Counsel quite late before the trial the Court will be cautious, however, about condemning Counsel and determining that he or she ought, in essence, indemnify the clients for costs where there is at least a possibility the steps which were later condemned were in fact taken on specific instructions and, even, against advice.
- [16]I think, too, that in context the remarks the plaintiffs’ Counsel made about the conduct of the defendant’s lawyers are more fairly described as misguided, rather than wilfully offensive or so wrong as to warrant a compensatory remedy. They appear to have some connection with the assertion that the defendant’s alleged negligence springs from a species of dishonesty a submission of some complexity, with which I have struggled but in any event it cannot be said the remarks are especially bad, and they ceased immediately upon objection and have effectively been withdrawn.
- [17]Debate and discussion of this kind carries the risk of unfairly embarrassing, or being seen to unfairly criticise, Counsel who (particularly in the context of a ‘direct’ brief) does not have unlimited scope to respond. The fact that the issues and questions discussed above are open is, I think, an indication that this is not a clear case in which the compensatory basis of this wing of the costs jurisdiction is called up; and, there is a measurable risk an order like that would be unfair. Costs should simply be awarded against the plaintiffs, on the indemnity basis.
- [18]The defendant seeks costs in a specific amount - $20,726.20. The amount claimed is set out with some short particulars in an affidavit from the defendant’s solicitor filed by leave on 6 December 2007. The application for costs in a specified amount is made pursuant to UCPR r 685(2) which permits payment of an amount for costs decided by the Court. As clause 3 of the Chief Judge’s Practice Direction No 3 of 2007 notes, however, while the Court has a broad discretion to fix costs and will do so where that will avoid undue delay and expense, the Court must be confident it can fix costs on a reliable basis.
- [19]The various items set out in the solicitor’s affidavit are only tersely summarised. Many are emails, for which either $52 or $104 is charged (or some larger amount) but there is no explanation for the difference. Some quite large items are not explained at all e.g. $396 to “review evidence of plaintiffs”, $312 for “email to client” on 21 November 2007, and as much as $520 for an email to Counsel on 26 November. The total including GST is $16,601.20, plus Counsel’s fees. The amount seems at first blush quite high, particularly when compared with the costs awarded after the first post-trial application which were considerably less.
- [20]I am not in the circumstances confident that costs can be fixed on a reliable basis. That necessarily calls up the assessment process, which has also been subject to recent changes and Practice Directions. I will simply order that the plaintiffs pay the defendant’s costs of and incidental to the application filed 26 November 2007 assessed on an indemnity basis. The parties may then, jointly or severally, embark upon the process described in clause 4 of Practice Direction No 3 of 2007; or, if necessary, the other interim arrangements provided under Practice Direction No 5 of 2007. I will give leave to apply in those respects.
Footnotes
[1] UCPR, r 704
[2] Venn & Anor v Bendigo Bank Limited (No 2) [2007] QDC 266
[3] There is some inconsistency within the judgments in Myers v Elman, but subsequent decisions have proceeded on the basis that the jurisdiction is, in truth, compensatory: Mauroux v Soc Com Abel Pereira Da Fonseka and SARL [1972] 1 WLR 962, at 970; Currie & Co v Law Society [1977] QB 990 at 997; Orchard v Southeastern Electricity Board (supra).