Wolfe v Williams[2012] QDC 293

[2012] QDC 293

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 1093 of 2006

BRISBANE 

DATE 14/09/2012

ORDER

HIS HONOUR:  The Court makes an order in terms of the initialled draft which provides as follows:

The order of the Court is that:

3. (1)
   The claim as against Phillipa Geaney is dismissed by operation of the order made on 7 September 2012.

3. (2)
   The plaintiff be granted leave pursuant to rule 304(2) of the Uniform Civil Procedure Rules to discontinue the proceeding as against the second defendant and the proceedings are hereby discontinued as against the second defendant.

3. (3)
   The plaintiff pay:

3. (a)
   the third defendant's costs of and incidental to the proceeding from 20 February 2012, including any reserved costs up to and including 14 August 2012 on the standard basis, and;

3. (b)
   the third defendant's costs of and incidental to the proceeding including any reserved costs on and after 15 August 2012 and including any liability of the third defendant pursuant to these orders for the costs of the second defendant on the indemnity basis.

This order supersedes the more limited one made on 14 August 2012 in paragraph 5.

3. (4)
   The plaintiff pay the second defendant's costs of and incidental to the proceeding including reserved costs, except for the costs of the applications dealt with by the orders of 25 August 2006, 26 September 2006, 5 December 2006, 12 March 2008, and 22 April 2008.

3. (5)
   These orders are expressly without prejudice to the rights of the third defendant Phillipa Geaney to seek relief, whether in this proceeding or another, as against any other person or persons in respect of her costs of the proceeding and of any liability of her to any other party in this proceeding for costs.

3. (6)
   The second defendant's application for costs against the third defendant up to 20 February 2012 be adjourned to a date to be fixed, not to be brought on unless lawyers who then represented the third defendant are served with an appropriate application that they also pay the costs applied for and/or indemnify the third defendant.

Today sees the end of the proceeding effectively, save for the possibility that paragraph (6) may have us back here. There has been something gained by the placing of it on the commercial list, as directions made have required the parties to identify clearly the issues they really want to pursue..

What has happened is that the remaining plaintiff has reached the view that it's not practicable for her to proceed. The costs of the proceeding are escalating enormously and are already out of proportion to the amount of the claim, which is for rent of commercial premises that were owned by the plaintiff in common with the third defendant, who originally was named as the co-plaintiff.

Explanations are advanced in the material for the plaintiff's change of heart, which is perfectly understandable; the plaintiff says that she has been encountering harassment on various fronts by the second defendant. About these assertions I express no view. The pressures of litigation on those involved, I am willing to accept those extend beyond financial ones, and health considerations among others are mentioned. To put it shortly, the plaintiff is not resiling from her claim or acknowledging that the defence by the only active defendant, the second defendant, is a good one.

From the outset the second defendant has asserted that her signature on the relevant lease document is a forgery. In circumstances where the third defendant, originally a plaintiff, makes assertions that her apparent signature on that document and others is a forgery, this is all extraordinarily dramatic. It should be made clear that the second defendant's complaint of forgery is not made against the plaintiff but rather against her spouse, the first defendant, who the Court was told admits as much.

It's not for the Court to assume that assertions of forgery are correct. If they were, it seems to me there could be a whole range of explanations, none creditable in retrospect but some involving less moral obloquy than others. It's possible, for example, that what was done was well-intentioned and perhaps done with the belief that the persons presumed upon would not mind.

From the Court's point of view, presuming to act in the name of others is particularly serious when it involves the institution of proceedings. It appears to be accepted that the third defendant had no idea whatever that the proceedings was being commenced and pursued until late January or early February 2012 when she was contacted by the second defendant in respect of default judgment which had been obtained in the joint names of her and Rachel Louise Wolfe, the sole remaining plaintiff.

The reasons published at [2012] QDC 249 say something regarding the difficult situation that can arise when proceedings are commenced in a person's name without that person’s authority and particularly where they result in orders against the plaintiff who has been erroneously named, typically for costs. Such a scenario threatens the third defendant here. The second defendant succeeded in having the default judgment set aside and has wished to preserve her ability to seek costs against the now third defendant, Philippa Geaney, in the event that an order against the remaining plaintiff for costs proves valueless.

Mr Ashton representing her has made it clear that he doesn't seek any costs from the time in February this year when Philippa Geaney disavowed the proceeding, but all along he has desired to keep her in it for the purposes of seeking a costs order against her and indeed one is sought today. There remain issues of the third defendant's responsibility for things done in her name. As the earlier reasons referred to indicate, not only was an asserted partnership between Mrs Wolfe and Mrs Geaney presented as a basis for the naming of both in the proceeding as plaintiffs, but also Mr Warat, it appears, used a wide and general Power of Attorney from Philippa Geaney to authorise the proceeding. It hasn't been determined what the effect of that was. There's at least a possibility that Philippa Geaney was bound. Perhaps she has rights over against Mr Warat or those in his interests it appears he was acting, which seem to have been Mrs Wolfe's and her husband’s.

I can see no attraction whatever in keeping the proceeding on foot for resolution of those arcane questions when all that's at stake are questions about costs and perhaps not of significant extent. That leave to discontinue is ordinarily granted is clear from Fuller v Toms [2010] QCA 283 at paragraph [25].

Costs are a separate matter. Rule 307(2) provides that where, as happens here, the party discontinues or withdraws with the Court's leave, the Court may make the order for costs it considers appropriate.

The very helpful submissions of Mr Morgan contain references that establish the Court's discretion as to costs to be unfetted. See Australian Securities and Investments Commission v Jorgensen [2008] QSC 233, paragraph [3] and re Minister for Immigration and Ethnic Affairs (Cth) Ex parte v Lai Qin [1997] HCA 6; [1997] 186 CLR 622. In the passage set out in the written submission, McHugh J refers to an unreported decision of Justice Pincus in Southeast Queensland Electricity Board v Australian Telecommunications Commission, Federal Court of Australia 10 February 1989 in which the order was that the respondent pay 80 per cent of the applicant's taxed costs.

It's recorded that his Honour thought both parties had acted reasonably in respect of the litigation. The order was thought to be explained by a view of the strength of the applicant's case. There are circumstances in which an applicant, thanks to the introduction of litigation, may get the outcome it wants, rendering further Court proceedings unnecessary. That's certainly not the case here.

Although somewhat optimistically Mr Morgan proposed that the Court order the second defendant to pay the plaintiff's costs, more realistic is the alternative submission that those two parties should bear their own costs - an outcome apparently frequently encountered as it was in re RG Munro Futures Pty Limited (in liquidation) and re Starport Futures Trading Corporation (in liquidation) [2011] QSC 405, see paragraph [15].

In my opinion this is not a scenario in which the parties should be left to bear their own costs. So far as the second defendant in particular is concerned she has been on the wrong end of costs orders on at least five occasions when the plaintiff has sought costs against her for failure to do those things which she ought to have done in the proceeding.

Views might differ as to the appropriateness of taking the “big stick” to a defendant hauled to Court to meet a claim which, like this one may be, is or turns out to be absolutely without foundation against her. That's not necessarily the way the plaintiff would have seen things had she thought the signature was genuine. In a context where the plaintiff has been enthusiastic in hammering the defendant for failing to play by the rules of the litigation game, it seems to me appropriate that when the tables are turned, as I think they are by a plaintiff who chooses to withdraw from the field, there be a cost to the plaintiff.

The second defendant is entitled to her revenge. I think it becomes a simple case of the defendant being forced to face a claim which is ultimately not pursued, that occurring in circumstances where it's clear the plaintiff has got no satisfaction in any other way and it's not at all clear that the plaintiff's claim was a maintainable one. The plaintiff thus ought to pay the second defendant's costs given that Mr Ashton accepted she could keep the fruits of the costs orders obtained by her and that Mrs Williams would not be in a position to seek her costs of the applications in which those costs orders were made.

The effect of the costs order in favour of the second defendant seems to be relative modest. So far as the claim Mrs Williams makes for costs against Philippa Geaney is concerned, it's not convenient or appropriate, in my view, for the Court to deal with that claim today. In a sense it's pursued against the possibility the costs order against Mrs Wolfe will prove to be without value and that may not be how things turn out.

If that hopeful expectation is not realised, then it seems to me that that's the time to look into Mrs Geaney's potential liability because things were done in her name without her knowledge or consent to be looked at. I think it would be a travesty if that occurred without those who are truly to blame in the matter which may well be the lawyers who presumed to act without clear instructions from her, also before the Court. It may well be necessary in order to achieve justice to make a succession of orders passing the costs liability down the line. That could be done with all potential payers before the Court.

Those are the reasons for the orders that I have made in terms of the draft.