DISTRICT COURT OF QUEENSLAND

1. [1]
   Following the judgment delivered on 23 December 2010, the parties sought the opportunity to put in submissions in writing as to costs after having considered the reasons for my decision.  Subsequently submissions in writing were received from each of the parties.  The second and third defendants sought costs of the proceeding, including costs reserved by another judge on the hearing of an application on 14 July 2010.  The plaintiff resisted an order for costs, essentially on the basis that there had been misconduct by the second and third defendants, or their solicitors, in the course of the proceeding, and that the application in respect of which costs were reserved was reasonably brought.

2. [2]
   This was a case where the defendants, who are seeking their costs, were wholly successful. There are authoritative statements from the Full Court and from the High Court to the effect that in such circumstances they are not to be ordered to pay the plaintiff’s costs.  In No. 1 North Phoenix Gold Mining Co Ltd v Phoenix Gold Mining Co Ltd (1896) 6 QLJ 307 Griffith CJ, with whom Cooper J and Real J agreed, said at p 310:

“In the case of Dicks v Yates^[1] James LJ pointed out the great distinction between plaintiff’s costs and defendant’s costs, which is that a party who is wrongfully brought into a court of justice, and is entirely successful, cannot be compelled to pay the costs of the other side.  That is not a matter of discretion.  A man who is innocent and who is successful cannot be made subject to costs.”

3. [3]
   A similar proposition was advanced by Dixon CJ, delivering the judgment of the High Court in Hally v Dennis (1955) 95 CLR 661 at 663-4:

“We heard a full discussion in support of the application because we thought as the application was opened that the order of the Full Court infringed the rule which I shall read from the judgment of Swift J delivered on behalf of himself and Macnaghten J in London Welsh Estates Ltd v Phillips:^[2]  ‘There is no power in the court to make a successful defendant pay the costs of an unsuccessful plaintiff.  The reason is obvious:  it is the plaintiff who brings the defendant into court.  The authority of the proposition I have stated is to be found in the judgment of Brett LJ in the case of Foster v Great Western Railway Co.’^[3]  To that decision may be added the authority of Dicks v Yates.”

4. [4]
   Dicks v Yates (1881) 18 Ch D 76 was a decision of the Court of Appeal, in which Jessel MR said that “if the plaintiff has no title” there is no discretion in the court to give the whole of the costs to the plaintiff.  He added at p 85:

“I wish not to be supposed to go further than I intend.  I think that the court has a discretion to deprive a defendant of his costs though he succeeds in the action, and that it has a discretion to make him pay perhaps the greater part of the costs by giving against him the costs of issues on which he fails, or costs in respect of misconduct by him in the course of the action.  But a judgment ordering the defendant to pay the whole costs of the action cannot in my opinion be supported unless the plaintiff was entitled to bring the action.”

The other members of the court agreed; James LJ added the proposition cited by Griffith CJ.

5. [5]
   In the following year the High Court spoke in somewhat different terms about an alternative order. In Milne v Attorney-General for Tasmania (1956) 95 CLR 460 in the joint judgment of the court at p 477, a differently constituted court, including Dixon CJ, said:

“It is a general rule that a wholly successful defendant should receive his costs unless good reason is shown to the contrary, and no reason to the contrary was shown in this case.”

6. [6]
   In Anghel v Minister for Transport (No. 2) [1995] 2 Qd R 454 McPherson JA at p 459 said:

“The established rule of practice is that a successful defendant, or a party occupying the position of a defendant, may not be ordered to pay the general costs of proceedings in which that party was successful. … The position may now be different in England, where the power to award costs has since 1925 been the subject of a differently formulated provision. … However, the force of the rule and the reason for it, as well as the earlier English decisions on which it is founded, were recognised by the High Court in Hally v Dennis.  If, therefore, in making the order with respect to costs now under appeal, his Honour was exercising the general power of the court under O 91, the order for costs made against the Minister in this case infringed the rule against ordering a successful defendant to pay costs.”

7. [7]
   In 1995 O 91 expressed the general rule in r 1 which relevantly provided:

“(1) Subject to the provisions of the Judicature Act 1876 and these rules, the costs of and incident to all proceedings in the court, including the administration of estates and trusts, shall be in the discretion of the court or judge.

3. (3)
   In addition … when any cause, matter or issue is tried with a jury, the costs shall follow the event unless the judge by whom such cause, matter or issue is tried, or the court, shall for good cause otherwise order.”

8. [8]
   It is also relevant to consider the terms of O 91 r 3 which provided:

“(1)When several issues, whether of fact or law, are raised upon a claim or counterclaim, the costs of the several issues respectively, both in law and fact, shall unless otherwise ordered, follow the event.”

9. [9]
   The application of this rule was discussed in Thiess v TCN Channel 9 Pty Ltd (No. 5) [1994] 1 Qd R 156 at 208, where the broad interpretation of the concept of “issue” adopted by Bowen LJ in Forster v Farquhar [1893] 1 QB 564 at 569-70, and favoured by Thomas J in Colburt v Beard [1992] 2 Qd R 67 at 70, was approved. 

10. [10]
    The current rule appears in r 681 of the UCPR which provides relevantly in sub rule (1):

“Costs of a proceeding, including an application in a proceeding, are in the discretion of the court but follow the event, unless the court orders otherwise.”

11. [11]
    The relevant provision in England referred to in Anghel (supra) was that contained in the Supreme Court of Judicature (Consolidation) Act 1925 s 50(1), said to be not relevantly different from the provisions of the Supreme Court of Judicature Act 1890 s 5:

“Subject to the Supreme Court of Judicature Acts, and the rules of court made thereunder, … the costs of and incident to all proceedings in the Supreme Court, including the administration of estates and trusts, shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and to what extent such costs are to be paid.”

12. [12]
    As pointed out by McPherson J in Barameda Enterprises Pty Ltd v O'Connor [1988] 1 Qd R 359 at 391, the provisions of s 5 of the 1890 Act in England were not adopted in Queensland, so it is necessary to take care in applying English decisions based on such a provision.  The English section may be seen to go further than the expression in O 91 r 1(1), but the current Queensland rule does not contain that addition, and moves in the opposite direction, by adding as a prima facie rule the provision formally made in sub rule (3) but then confined to the situation where there was a trial by jury.  The current rule adopts a presumption similar to that which applied in the case of jury trials under the Judicature Act rules.^[4]  If anything, therefore, there is a stronger presumption in favour of the costs following the event in the UCPR than in the rules of the Supreme Court.

13. [13]
    In Ritter v Godfrey [1920] 2 KB 47, Lord Sterndale MR said at p 53:

“Speaking generally, I think it may be said that, in order to justify an order refusing a defendant his costs, he must be shown to have been guilty of conduct which induced the plaintiff to bring the action, and without which it would probably not have been brought … I do not say that this is the only test, but I think it is the one properly applied in this case.”

14. [14]
    That was a case where an action for professional negligence against a doctor was unsuccessful, but the trial judge had deprived the defendant of costs on the ground that, in response to a letter of demand before action, the doctor had addressed the plaintiff’s complaint “in a tone of levity and in somewhat insulting terms”. The Court of Appeal held that the terms in which that letter was written did not provide a proper basis for such an exercise of discretion, because they did not amount to conduct which led to the action being brought. Atkin LJ at p 60 said:

“In the case of a wholly successful defendant, in my opinion the judge must give the defendant his costs unless there is evidence that the defendant (1) brought about the litigation, or (2) has done something connected with the institution or the conduct of the suit calculated to occasion unnecessary litigation and expense, or (3) has done some wrongful act in the course of the transaction of which the plaintiff complains.”

15. [15]
    The first of these was said to refer to a situation where the plaintiff had reasonably been led to believe that he had a good cause of action against the defendant by unreasonable conduct on the part of the defendant other than that which constituted the alleged cause of action. Eve J, the third member of the court, gave as an example of something which would fall into the first category a persistent refusal to give reasonable explanations or to impart information which would have revealed a good defence but without which the plaintiff reasonably concluded that there was no good defence:  p 66.  However, he considered that there must be more than a forcible repudiation of liability, or a display of bad taste or bad temper, unless it was this which created in the plaintiff’s mind the mistaken belief that there as a good cause of action.  This analysis was applied in Sunday Times Newspaper Co Ltd v McIntosh (1933) 33 SR (NSW) 371.

16. [16]
    A similar approach was adopted by Roper CJ in EQ in Redden v Chapman (1949) 50 SR (NSW) 24 where he said:

“The normal rule that costs should follow the event should be applied, unless it is shown that there is some conduct of the defendant or defendants which has led to the litigation and without which the litigation would not have been brought, or which has had the effect of misleading the plaintiff as to the legal position which he seeks to assert in the suit.”

17. [17]
    Despite the traditional rule, the English Court of Appeal upheld an order for costs against a defendant against whom no relief was granted in Ottway v Jones [1955] 1 WLR 706.  That concerned an application under the Rent Acts, and Dicks v Yates could perhaps have been distinguished on the basis that the plaintiff had shown the facts necessary to give the court jurisdiction but failed as a mater of discretion although a highly unfavourable view of the conduct of the defendant was taken.  Although both Foster and Dicks were referred to, there was no analysis of them, and an ex tempore judgment treated them as establishing no more than rules of practice.

18. [18]
    In that matter, Evershed MR said at p 708:

“Although the terms of the rule on the face of them appear to put no limit upon the way in which a judge exercises his discretion as to costs, there is, I think, no doubt that, in what I will call … the ordinary case, where there is a decision to the effect that a defendant has been wholly successful, it is not a proper judicial exercise of the discretion to order such a defendant to pay the plaintiff’s costs.  That the judge may deprive the successful defendant of the costs which prima facie he would expect to recover is another matter.”

19. [19]
    Evershed MR said at p 711:

“I should like to say (what is indeed obvious) that, where a plaintiff in the end fails, it must be a very unusual thing to order the successful defendant to pay the costs; and it would only be in exceptional cases that a judge would think it right to make such an order.  Still, this is a matter for discretion; and, unless it is shown here that the judge erred upon some matter of principle, we should not, according to the well-established rules applicable to such matters, vary the discretion of the judge or seek to substitute a discretion of our own.”

20. [20]
    Later at p 713 His Lordship said that it would only be in a strong and exceptional case that a judge would think it right to order that a successful defendant pay the plaintiff’s costs.

21. [21]
    In the same matter, Parker LJ said at pp 714-5:

“The discretion of the County Court judge under O 47 r 1 of the County Court Rules, just as that of a High Court judge under s 50 of the Judicature Act 1925, is on the face of it completely unfettered.  I say ‘on the face of it’ because, of course, the discretion cannot be exercised arbitrarily; it must be exercised judicially and on fixed principles dictated by reason and justice.  One starts with this, that as a general principle costs follow the event, and the successful party is entitled to be paid his costs, unless there are special grounds to order otherwise; and those grounds, it is well settled, must be grounds connected with the cause of action.  No doubt also where a plaintiff has wholly failed to establish his title or his right, it is impossible judicially to order the successful defendant to pay the plaintiff’s costs.”^[5]

22. [22]
    The approach in Ritter (supra) was rejected by the House of Lords in Donald Campbell & Co v Pollak [1927] AC 732.^[6]  Viscount Cave LC at 811 said:

“The language used … by Atkin LJ and Eve J, who expressed the opinion that the trial judge in a non-jury case ‘must’ give the successful defendant his costs except in certain cases which they defined, is difficult to reconcile with the statutes and rules which give him an absolute and uncontrolled discretion.  Indeed the rules laid down in that case by those learned judges bears so close a resemblance to those which would guide a judge in determining whether there was ‘good cause’ for depriving of his costs a successful defendant in an action tried with a jury, that, if they are held to be binding, little or no difference will be left between the power of a judge over costs in an action tired with a jury and that which the statute gives him in the case of a trial without a jury.  A gloss on the statute which leads to so complete a frustration of its purpose surely calls for very close and critical examination in your Lordship’s House … .  It appears to me that the true view is substantially that taken by Lord Sterndale in … Ritter, although I would express it in somewhat different language.  A successful defendant in a non-jury case has no doubt, in the absence of special circumstances, a reasonable expectation of obtaining an order for the payment of his costs by the plaintiff; but he has no right to costs unless and until the court awards them to him, and the court has an absolute and unfettered discretion to award or not to award them.  This discretion, like any other discretion, must of course be exercised judicially, and the judge ought not to exercise it against the successful party except for some reason connected with the case.”

23. [23]
    His Lordship went on to say that the discretion could be exercised on the basis of facts connected with or leading up to the litigation which had been proved before or observed by the trial judge. Three of the other four members of the House of Lords agreed with those reasons.^[7]  As noted earlier, rule 681(1) is more like the rule applicable in the case of a trial with a jury, from which this was said to differ.

24. [24]
    Foster v Great Western Railway Co, the decision followed by Dixon CJ, was not followed in Knight v Clifton [1971] Ch 700.  It was held that, so far as the decision turned on a question of jurisdiction, the terms of the 1890 and later statutory provisions were apt to confer a jurisdiction which did not previously exist.  Knight concerned the costs of an unsuccessful motion to commit for contempt; an order that the respondent pay the applicant’s costs was set aside on appeal, but on the basis that there had been an error in the exercise of the discretion.  That court also discussed the decision of Ottway v Jones [1955] 1 WLR 706.  Russell LJ at p 713 said that an order for costs could be made when the contempt was proved but the defendant not otherwise punished, but not when the contempt was not made out, except perhaps if the defendant had deceived the plaintiff into thinking that the injunction had been breached.  It was one thing not to give a successful party costs, but quite another to order him to pay them.  Sachs LJ rejected the authority of Foster in clear terms on the basis of the 1890 Act, but did not refer to Dicks, and referred to Pollak and Ottway before reluctantly allowing the appeal.  Buckley LJ said that the 1890 Act gave jurisdiction and the matter was one of discretion, but it was a wrong exercise of discretion which ought to be corrected.  He approved the approach of Parker LJ in Ottway.  Overall, the approach of Sachs LJ involved the greatest movement from the traditional position, as exemplified in Dicks.

25. [25]
    The position in England has moved away from the rule spoken of by McPherson JA to the extent where it is said in Halsbury (4^th ed. Vol 37 para 717):

“A successful defendant may be deprived of part or all of his costs.  However, to make a defendant who succeeds in the sense that no relief is ordered against him pay the costs of the plaintiff who fails in the sense that no relief is obtained by him in his suit requires a strong and exceptional case.”

26. [26]
    McPherson JA repeated his caution about the application of some of the English decisions on costs in McPherson v Commissioner of Taxation [1988] QCA 396, although he spoke with apparent approval of the discussion by Sachs LJ in Knight v Clifton [1971] Ch 700, where his Lordship emphasised that the issue was one of discretion rather than jurisdiction, and it was a question of the basis upon which a judicial discretion could properly be exercised.

27. [27]
    The approach in Ottway v Jones (supra) was distinguished in Victoria in Thorne v Doug Wade Consultants Pty Ltd [1985] VR 433 where Ritter was cited and applied at first instance and by a majority of the Full Court, although on a precautionary basis only because they held that an appeal as to costs was not available without leave.  On the other hand, the approach of Evershed MR appears to have been followed by the Full Court in Verna Trading Pty Ltd v New India Assurance Co Ltd [1991] VR 129.  In that case Kaye J at p 154 said that the general discretion of a trial judge, under a section of the Supreme Court Act 1968 which was apparently modelled on the English provision of 1890, ought not to be fettered by the rules formulated by Atkin LJ in Ritter.  The other members of the court agreed, although Ormiston J was clearly troubled by the way the discretion had been exercised in that case.  Significantly, Kaye J regarded what was said by Dixon CJ in Hally v Dennis (supra) as dicta, as well as following the conclusion in Knight v Clifton (supra) that the approach in Foster and Dicks did not survive the 1890 Act:  pp 151-2.

28. [28]
    In Latoudis v Casey (1990) 170 CLR 534 McHugh J at 569-70, discussed the position of a successful defendant in relation to a summary prosecution, and said that speaking generally in order to deprive such a defendant of costs “it will be necessary for the informant to establish that the defendant unreasonably induced the informant to think that a charge could be successfully brought against the defendant or that the conduct of the defendant occasioned unnecessary expense in the institution or conduct of the proceedings.”  Reference was made to authorities, including Ritter and Redden.

29. [29]
    In Oshlack v Richmond River Council (1998) 193 CLR 72 at 86 Gaudron and Gummow JJ in a joint judgment said that what was said in Milne (supra) was to be understood in the sense described by Brennan J in Norbis v Norbis (1986) 161 CLR 513 at 537:

“It is one thing to say that principles may be expressed to guide the exercise of a discretion; it is another thing to say that the principles may harden into legal rules which would confine the discretion more narrowly than the parliament intended.  The width of a statutory discretion is determined by the statute; it cannot be narrowed by a legal rule devised by the court to control its exercise.”

30. [30]
    Their Honours pointed out that the relevant statutory provisions in that matter were based on the qualification introduced by s 5 of the Supreme Court of Judicature Act (1890) in England which was said to ensure that the court had, so far as possible, freedom of action.^[8]  This is the provision quoted above, which of course differs from the current Queensland rule r 681(1) which provides that costs follow the event unless the court orders otherwise.  That may be said to be more a reflection of the approach expressed in Milne than that applicable under the differently expressed legislation considered in Oshlack.

31. [31]
    The other member of the majority in Oshlack, Kirby J, also set out a general discussion about the discretion in relation to costs in paragraph [134].  That analysis included the proposition that a successful party, in the absence of special circumstances, had a reasonable expectation of obtaining an order for costs in its favour unless for some reason connected with the case a different order was specially warranted.  Any departure from this expectation required appropriate material to justify such an approach.  Nevertheless, this approach cannot extinguish the element of discretion.

32. [32]
    McHugh J, with whom Brennan CJ agreed, in a dissenting judgment discussed the concept of the usual order as to costs from para [67], in a passage which has been subsequently cited.  His Honour described as an important principle that “subject to certain limited exceptions, a successful party in litigation is entitled to an award of costs in its favour.  The principle is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant. … The primary purpose of an award of costs is to indemnify the successful party.  If the litigation had not been brought, or defended, by the unsuccessful party, the successful party would not have incurred the expense which it did.  As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation. … The traditional exceptions to the usual order as to costs focus on the conduct of the successful party which disentitles it to the beneficial exercise of the discretion. … The court may properly depart from the usual order as to costs when the successful party by its lax conduct effectively invites the litigation; unnecessarily protracts the proceedings; succeeds on a point not argued before a lower court; prosecutes the matter solely for the purpose of increasing the costs recoverable; or obtains relief which the unsuccessful party had already offered in settlement of the dispute. … There are few, if any, exceptions to the usual order as to costs outside the area of disentitling conduct.”

33. [33]
    That passage, or part of it, was cited by Muir J as he then was in Curtis, Coolee and Palmshell Pty Ltd v Ververka [2002] QSC 297, by the Court of Appeal in Bucknell v Robins [2004] QCA 474 at [17], and more recently by Chesterman J (as he then was) in Todrell Pty Ltd v Finch [2008] 2 Qd R 95, and by McMurdo J in BHP Coal Pty Ltd v O & K Orenstein & Coppell AG (No. 2) [2009] QSC 64 at [7].  The latter decisions also refer to r 684, which permits the court to make an order for costs in relation to a particular question in or a particular part of a proceeding, and to declare what percentage of the costs of a proceeding is attributable to the question or part to which the order relates.^[9]  In BHP Coal, McMurdo J said in the passage cited that this rule provides an exception, and that the circumstances which would engage it are exceptional circumstances.  He said that the enquiry must be:

“What is it about the present case which warrants a departure from the general rule.”

34. [34]
    His Honour also referred with approval to a statement of Einstein J in Mobile Innovations Ltd v Vodafone Pacific Ltd [2003] NSWSC 423 at [4]:

“Notwithstanding that the court has power to deprive a successful party of costs, or even order a successful party to pay costs, that is a course to be taken in unusual cases and with a degree of hesitancy.”

35. [35]
    The question of what was the “event” for the purpose of r 681 was explained by McPherson JA in Interchase Corporation Ltd v Grosvenor Hill (Qld) Pty Ltd (No. 3) [2003] 1 Qd R 26 at 60-61.  In that case, the Court of Appeal upheld a decision by a trial judge not to award costs to a defendant against whom the plaintiff had failed, in circumstances where the plaintiff succeeded against a related company, the successful defendant and the company were represented by the same lawyers and were both protected by the same insurer, and the only separate matter in issue between the plaintiff and the successful defendant was whether he had assumed personal responsibility for the company’s valuation which he had carried out.  Interestingly, at [81] his Honour said:

“Having succeeded in defeating the plaintiff’s claim, it would not have been a proper exercise of discretion to order that he pay the plaintiff’s costs of the proceedings.”

36. [36]
    That may be seen as a fairly recent confirmation by the Court of Appeal of the traditional rule. In the context of that case, however, where such an order was not directly in issue, his Honour’s view on the point was obiter and perhaps the precise expression used by his Honour should not be too closely scrutinised.

37. [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]

Matters relied on by the plaintiff

38. [38]
    The plaintiff submitted that some of the matters raised in the pleadings on which he failed had been abandoned either at the beginning of or during the trial, or not pressed in submissions. There is some force in this, but some costs may have been incurred in relation to these matters prior to the time when they were not pressed. Of greater significance is the fact that, on the causes of action which were pursued to the end of the trial, the plaintiff was unsuccessful. Subject to that, there are broadly speaking two matters raised by the plaintiff: that to some extent the defendants succeeded on issues which had not been properly raised on the pleading prior to the trial, and that the defendants had prolonged the proceeding and increased costs wrongfully.

39. [39]
    As to the criticism that the proposition that the third defendant did not believe that the plaintiff was totally incapacitated for the purposes of early release of the superannuation money was not raised in the defence, a difficulty with the argument is that there was no pleading in the statement of claim that the third defendant did hold at any relevant time the opinion that the plaintiff was totally incapacitated for that purpose. Paragraph 13(b) asserts rather obliquely that the plaintiff had a right to apply for early release of superannuation funds, which can perhaps be taken as an implied assertion that the plaintiff’s actual medical condition was such that he was entitled to an early release of superannuation funds, but in response the defendant in paragraph 15B denied the allegations in that paragraph, in so far as they related to the third defendant.  It is true that that paragraph went on to refer to the third defendant’s assessment of the plaintiffs’ best therapeutic interests, but it does not contain any allegation inconsistent with the proposition that the third defendant did not in fact believe at the relevant time that the plaintiff met the test appropriate for the superannuation claim.  The plaintiff can hardly complain about the absence of a distinct denial of a proposition which was not distinctly alleged.

40. [40]
    Paragraph 15 of the statement of claim referred to something of which the first defendant advised the plaintiff; even though in subparagraph (c) there may be lurking an implied allegation as to the belief of the third defendant at the relevant time, by reference to the existence of a duty on the part of the third defendant to complete the medical certificate, on its face paragraph 15 is an allegation against the first defendant, and the express statement in paragraph 16 of the defence that the second and third defendants did not plead to it as no allegations were made against them in it was a clear enough statement of their attitude to the paragraph.

41. [41]
    Finally, paragraph 16 alleged that the third defendant on a particular date advised the plaintiff that he would complete the medical certificate, inferentially in the terms sought by the plaintiff, if and only if the first defendant confirmed that he would provide an equivalent certificate.  In the defence at paragraph 18 any such statement by the third defendant to the plaintiff was expressly denied; what was alleged was that the plaintiff advised the third defendant that the first defendant would be contacting him to discuss the issue, something that in fact did not occur.  The paragraph in the statement of claim did not directly allege that the third defendant held any particular opinion at that time, and unsurprisingly in these circumstances there was no direct plea in relation to that specific proposition, but the allegations in the statement of claim were denied.  It is true that the defence did not allege that the third defendant did not hold the opinion which the plaintiff sought him to certify, but did allege that his decision not to certify was reasonable (para 38(a)(i)(B)), that he had to consider whether the plaintiff met the criteria, and that he was entitled to take into account therapeutic considerations (para 31(c)).

42. [42]
    As to the proposition that the third defendant’s evidence that he did not ever receive the medical certificate for him to sign was contrary to implications in the pleadings, again reference to the pleadings does not reveal that at any time the plaintiff directly pleaded that the third defendant (as distinct from the second defendant) ever actually received any of the various documents which were alleged to have been left with the second defendant for him. In these circumstances it is unsurprising that this was not an issue addressed specifically in the defence.^[12]  The defendant’s defence certainly raised the proposition that the third defendant had encouraged the plaintiff at least to attempt to stop drinking alcohol, which was consistent with the third defendant’s evidence during the trial.  The real problem for the plaintiff, in relation to this issue, is that the plaintiff’s pleading, in much the same way as the plaintiff’s conduct throughout when dealing with the defendants, assumed that any expression of their opinion on the point would be supportive of the plaintiff’s application.

43. [43]
    As to the proposition that the plaintiff did not have reasonable notice that the third defendant had relocated to the Ipswich Hospital fairly soon after the last consultation, the proposition that the third defendant had relocated to the Ipswich Hospital prior to 4 February 2009 was contained in paragraph 26 of the plaintiff’s pleading, although that was alleged as one of the matters of which the plaintiff was informed by another doctor working for the second defendant.  Because that paragraph was formulated in that way, the defendants appropriately pleaded to the question of whether or not the doctor had informed the plaintiff of those matters (which was not admitted), rather than whether the matters were themselves true.  That was an appropriate way to plead in the circumstances.

44. [44]
    It may be that some aspects of the evidence of the third defendant came as something of a surprise to the plaintiff, but it is not unusual for such a situation to arise at a trial. Pleadings contain material facts; they do not set out the evidence by which the party seeks to prove those facts, nor evidence which deals with matters not pleaded as material facts. Although the plaintiff had filed extensive affidavits prior to the trial, there was no direction that the third defendant’s evidence be put in writing and served prior to trial, and such a direction would have been quite inconsistent with the ordinary practice in civil trials in this court.

45. [45]
    Apart from that, it is an overstatement to say that those issues pretty well won the case for the defendants. As reference to my earlier reasons will demonstrate, there were generally more fundamental difficulties with the plaintiff’s claims. One particular difficulty, of which due notice was given on the pleadings, was that the third defendant was not a specialist psychiatrist at the relevant time, so that his certificate, even if given as requested by the plaintiff, would not have assisted the plaintiff, because it did not meet the requirements of the superannuation fund. That the third defendant was not a specialist psychiatrist was pleaded by the second and third defendants at an early stage.

46. [46]
    The plaintiff also criticised the conduct of the case for the second and third defendants prior to the trial in a number of respects, with the overall proposition that the case was being conducted pursuant to a deliberate policy of destroying the plaintiff financially and emotionally. The plaintiff continued to rely on allegations which were discussed in my earlier reasons in the context of claims for aggravated damages in relation to the solicitor’s conduct. As I said there, I think there was a technical deficiency in the disclosure, in that a requirement identified by the Court of Appeal in Interchase Corporation Ltd v Grosvenor Hill (Qld) Pty Ltd (No. 2) [1999] 1 Qd R 163 was not complied with, but I have previously concluded that that was not as a result of any deliberate attempt on their part to crush or discourage or upset the plaintiff.  I may say that in my experience the method adopted by the solicitors in giving disclosure of files in the way they did is a very common practice in litigation in Queensland.  As I said that the time, the matter could have been overcome by providing the plaintiff with a copy of the file, but the dispute appears to have become bogged down in the plaintiff’s insistence that the list of documents being prepared in the way he considered was appropriate, that is, by listing individually the relevant documents within the files.

47. [47]
    In his submissions in relation to costs, he said that he had also been seeking copies of the files throughout this period on numerous occasions. The plaintiff tendered at the trial a bundle of correspondence in relation to this question, which became Exhibit 16.  This exhibit includes a number of letters from the plaintiff complaining about the delay on the part of the second and third defendants in making disclosure.  Following the service of the list of documents in late December 2009, the plaintiff wrote on 7 January 2010 complaining about the format of the disclosure.  It is correct that that letter sought either an itemisation and description of each separate document within the files or that they “send me a copy of those complete records so that I can determine their relevance and usefulness”.  Thereafter, the follow up correspondence simply referred to the second and third defendants remedying their inadequate disclosure.

48. [48]
    Under cover of a letter of 9 April 2010 the solicitors for the second and third defendants provided a further list which particularised each document on each of the medical charts, that is, each of the files held by the Ipswich Health District.  In a lengthy letter of 23 April 2010 the plaintiff sought copies of some particular documents but also complained about a failure to disclose other documents which had not been covered by the list, or which he could not identify as covered in that particular list.  On 5 May 2010 he followed up the request that the defendants provide the requested documents as soon as possible.  On 1 June 2010 there was a further letter which among other things complained that he had still not received a single document from the solicitors.  On 4 June 2010 the solicitors for the defendants wrote enclosing copies of the three files.  The letter went on to respond to the allegation of 23 April that there were other documents which had not been disclosed.  The letter also maintained the position that the original disclosure was adequate, and said that, had he requested a copy of the documents in the original list, he could have assessed the relevance of them for himself.  That did overlook the fact that in the letter of 7 January 2010 he had sought either an itemisation of each document within the files or copies of the complete files.  This letter provoked a lengthy and hostile response on 13 June 2010 from the plaintiff.

49. [49]
    Stripped to its essentials, therefore, there is some justification in the plaintiff’s complaint that he did not receive a proper response to his complaints about disclosure, even though I consider that the primary point that he was making, that the original list of documents did not make proper disclosure because of a failure to disclose the contents of the files individually, was unsound. He did seek copies of those three bundles (in the alternative) and it took five months for the defendants’ solicitors to provide those copies. It must be said, however, that the general thrust of the plaintiff’s correspondence over the period did emphasise that he was entitled to a list of documents which enumerated the relevant documents rather than providing disclosure by bundles, and it does appear that that dispute bogged things down for a while.

50. [50]
    In the meantime, the plaintiff had filed an application on 27 May 2010 which was heard by another judge on 14 July 2010.  By the time that came on, the question of disclosure on the part of the second and third defendants had been essentially resolved, but my impression from the correspondence in Exhibit 16 is that this was certainly one of the factors which provoked the filing of that application.^[13]  The correspondence also ventilated issues about how the trial was to be conducted, matters such as evidence by affidavit and so on, which ultimately were dealt with further by me on a later hearing prior to the trial, and at the trial, when I accepted as evidence three lengthy affidavits which the plaintiff had filed, though he also gave evidence-in-chief and was cross-examined.  Ultimately the form in which he put forward his evidence at the trial was in accordance with what he requested at that time.

51. [51]
    It is probably fair to say, therefore, that ultimately the matters dealt with on 14 July 2010 were essentially case management matters, in circumstances where the issue of the defendants’ disclosure had largely gone away, and that judge, knowing she was not going to be the trial judge, was wary about dealing with issues as to how the trial itself was to be conducted.  But I think there is some force in the plaintiff’s submission that the making of the application was prompted, in part at least, by the approach adopted by the defendants’ solicitors in relation to disclosure.

52. [52]
    It is not clear whether I have in Exhibit 16 all of the correspondence that passed between the parties during the period, but if so, it also appears that there were a large number of letters written by the plaintiff in that period to which no response was received, and it is understandable that the plaintiff would feel that his correspondence was frequently being ignored.^[14]  Admittedly, a good deal of the content of some of the letters is perhaps best explained by the psychiatric difficulties the plaintiff was experiencing, and the tone of some of them was aggressive and inflammatory, but there were from time to time practical issues raised in relation to the conduct of the litigation which did not receive a timely reply.  That in itself prompted additional letters.  He was obviously very upset that the matter was taking so long to come to trial, when he believed he would be vindicated.  It does seem to me that in the circumstances the plaintiff has some grounds for complaint on this count as well.

53. [53]
    Another matter of which the plaintiff complains is the conduct of the Mental Health Service at Ipswich, which the plaintiff saw as denying him care after the proceeding was commenced.  This is a matter addressed in my earlier reasons, where I was not persuaded that there was a deliberate denial of care in response to the litigation, though it did seem to me that the process of handing the plaintiff’s care back to a general practitioner had not been handled properly; indeed, I thought one of the defendant’s witnesses admitted as much.  That, however, was not conduct which in my view was sufficiently connected with the action to make it relevant to this exercise of discretion, in the light of the authorities to which I have referred.

54. [54]
    The plaintiff also complains that the preparation of the matter for trial was delayed by the defendants’ solicitors; indeed he alleges that this was done deliberately in order to punish and destroy the plaintiff, and I am not persuaded that that was the case. The plaintiff found conduct of this action a most frustrating and unsatisfactory experience, no doubt compounded by the mental health problems he was experiencing at the time.

55. [55]
    The plaintiff also complained about a failure to take and provide a statement from one of the witnesses who was ultimately called by the defendants at the trial; it would not be in accordance with the ordinary procedures in Queensland for a statement of a witness of that nature to be provided by a party prior to the trial, and the defendants were under no obligation to do so under the rules. The plaintiff also complained about a failure on the part of the defendants to advise at an earlier stage that they would consent to the tender of various documents which were ultimately tendered by consent at the trial. Most of these were documents which were not admissible just by tender. Ultimately whether or not parties consent to the tender of documents is a matter for them, and they really cannot be criticised in this context for not consenting at the earliest possible opportunity.

Conclusions

56. [56]
    Dealing first with the reserved costs of the order on 14 July 2010, it is correct that to some extent what happened on that day was part of the ordinary process of carrying the proceeding forward in a case management sense, but case management is not part of the ordinary process of dealing with civil trials in Queensland, and the plaintiff did not file the application simply in order to obtain case management.  Ultimately I think there is some force in the proposition that the application was prompted by a failure of the solicitors for the defendants properly to respond to at least such of the correspondence from the plaintiff as required a response, particularly in relation to disclosure.  The position was different with the later directions hearing before me, which was very much a matter of case management prior to the trial.  In all the circumstances, therefore, I think that no order should be made in respect of the costs reserved on 14 July 2010.

57. [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. [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. [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.