Pouzyr v Makhanyok & Anor (No. 2)
[2014] QDC 119
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- Pouzyr v Makhanyok & Anor (No. 2)[2014] QDC 119
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Pouzyr v Makhanyok & Anor (No. 2)[2014] QDC 119
Pouzyr v Makhanyok & Anor (No. 2)[2014] QDC 119
DISTRICT COURT OF QUEENSLAND
CITATION: | Pouzyr v Makhanyok & Anor (No 2) [2014] QDC 119 |
PARTIES: | IAROSLAV POUZYR (plaintiff) v ANDREY MAKHANYOK (first defendant) and ELENA MAKHANYOK (second defendant) |
FILE NO/S: | SD207/11 |
DIVISION: | Civil |
PROCEEDING: | Claim and Counterclaim – Decision on Costs |
ORIGINATING COURT: | District Court, Southport |
DELIVERED ON: | 29 May 2014 |
DELIVERED AT: | Brisbane |
HEARING DATE: | On the papers |
JUDGE: | Dorney QC DCJ |
ORDERS: | It is ordered that:
|
CATCHWORDS: | Costs - where both “in the cause” (where late Counterclaim) and “reserved” (where illness necessitated adjournment) - where associated Supreme Court costs also reserved |
LEGISLATION CITED: | Uniform Civil Procedure Rules 1999, r 681, r 698 |
CASES CITED: | AHB v NSW Trustee and Guardian [2014] NSWCA 40 Blacktown City Council v Wilkie (No 14) [2012] NSWLEC 252 Johnston & Anor v Herrod & Ors [2012] QCA 361 Merrin v Commissioner of Police [2012] QCA 181 Murphy v Legal Services Commissioner (No 2) [2013] QSC 253 Pouzyr v Makhanyok & Anor [2014] QDC 112 |
COUNSEL: | Self-representation by the plaintiff J Sweeney for the defendants |
SOLICITORS: | Michael Sing Lawyers for the defendants |
Introduction
- [1]On 20 May 2014, I delivered judgment, both on the Claim and the Counterclaim in this proceeding, and ordered that all parties have leave to file, and serve, written Submissions on Costs by 4:00pm on 27 May 2014.
- [2]Written Submissions have been received from the defendants only. The plaintiff has indicated that he does not intend to make any submissions.
- [3]The areas that I sought submissions on were contained in paragraph [69] of the decision reported as Pouzyr v Makhanyok & Anor [2014] QDC 112. I will consider each of those aspects in turn.
Costs in the cause
- [4]There are a number of interlocutory decisions in this proceeding in which one of the orders made by this Court has been that various costs be “costs in the cause”.
- [5]In this context it should be noted that the defendants’ Counterclaim only became part of the proceeding pursuant to leave given on 2 October 2013. It was filed on 3 October 2013.
- [6]That apart, before leave was given by this Court on 30 September 2013 for the plaintiff’s former solicitors to withdraw, the plaintiff had become a self-represented litigant by his Notice that he was Acting in Person filed on 27 September 2013.
- [7]The last order whereby costs were made “costs in the cause” was that made on 2 October 2013. In addition, at the adjourned trial held on 24 and 25 March 2014 the defendants led no evidence directed to supporting their Counterclaim and, as earlier noted, in their written Submissions, did not press their Counterclaim.
- [8]Accordingly, it is appropriate, taking all those circumstances into account, to conclude that those costs which were costs in the cause were costs in the cause of the unsuccessful Claim agitated by the plaintiff, apart from that part of the order made on 2 October 2013 whereby leave was given to file and serve the Second Amended Defence and Counterclaim. But, even in respect of that, the leave was also with respect to the defendants’ Defence. Nevertheless, I do intend to exclude, from those costs which are costs in the cause, such costs as relate to the costs incurred with respect to the hearing on 2 October 2013 which relate to the Counterclaim.
- [9]But, subject to that, given that the “event” in question here was the Claim, all other costs in the cause will be the defendants’ costs of the Claim.
District Court reserved costs
- [10]The primary reserved costs in question here are those which were reserved at the end of the first three days of hearing on 15, 16 and 17 October 2013. What had happened was that the plaintiff was taken ill and produced a medical report relevant to that illness. The doctor who issued the medical report gave telephone evidence and, as I indicated at the time, I saw no reason not to accept the evidence that he gave: cf AHB v NSW Trustee and Guardian [2014] NSWCA 40, regarding inadequacy of supporting material and reasons (at [4]). That evidence was to the effect that the plaintiff was unable to continue appearing in court – as he was required to do being a self-represented litigant and then witness – for at least the time that the trial had been set down for hearing on that occasion. The defendants’ counsel sought that the costs be reserved. I agreed to this, although I expressed my reluctance to rule that, because illness is something that could strike any party to the action, the party who suddenly became ill should necessarily be visited with such costs: see Blacktown City Council v Wilkie (No 14) [2012] NSWLEC 252, where Pepper J, in circumstances where Counsel had a “sudden illness”, granted an adjournment, “reluctantly”, and ordered that professional witnesses be paid their costs of travel and appearance, while otherwise reserving the costs, including those “thrown away by the adjournment”: at [12], [13] and [17]. The background to that case showed that there was justified “exasperation” on the part of the other party: at [10]-[11].
- [11]The costs that would need to be considered here would be those which were thrown away by reason of the adjournment. Given the conclusions that I have reached below concerning how costs should otherwise be awarded, the actual costs of the hearing to that date will be caught up in such orders, as the plaintiff’s case was still on foot regarding the Claim. Having considered the matter afresh, I do not intend to award any separate costs for costs which were thrown away as a result of the adjournment of the trial. Here, no expert witness has been claimed to be inconvenienced and there was no history of adjournments such that this one could be described as a further waste of costs with no apparent result.
- [12]The only other reserved costs order is that made by the Registrar on 21 May 2012. It is, thus, necessary to consider the effect of r 698 of the Uniform Civil Procedure Rules 1999 (“UCPR”) (which states that costs of an application in a proceeding which are reserved “follow the event”, unless the court orders otherwise). Since, at that time, only the Claim existed, then its outcome is the “event”. There is no reason to order “otherwise”.
Supreme Court reserved costs
- [13]When Daubney J handed down his decision in the Supreme Court on 21 April 2011 he ordered that the costs of the application before him “be reserved” to the (plaintiff’s) proceeding referred to in an earlier order that he made which led to the present proceeding in this Court. A proviso to that order was expressed in the following terms:
“That if the (plaintiff) does not commence such proceeding, then the (plaintiff) shall pay the (defendants’) costs of and incidental to this application.”
- [14]Given that the plaintiff was unsuccessful here in the proceeding bought by way of Claim, those reserved costs ought to be awarded to the defendants, especially in light of the proviso to the order which Daubney J made.
Costs on the Claim
- [15]In the ordinary course of things, r 681 of the UCPR would mean that the costs of the Claim here should “follow the event”. And there is no reason why that should not be so; but the defendants also seek that such costs be indemnity costs, based upon asserted “unreasonable conduct” of the plaintiff.
- [16]In Johnston & Anor v Herrod & Ors [2012] QCA 361 Muir JA, with whom Gotterson JA and Applegarth J agreed, canvassed the relevant decisions about the relationship between indemnity costs and conduct. He remarked that it might be seen, from a canvassing of relevant authority, “that, in determining whether indemnity costs should be ordered, the normal focus is on the conduct in and in respect of the litigation by the party against whom the costs order is to be made”: at [11]. Further consideration was then undertaken of the circumstances in which this principle should be exercised (where the arguments by the losing party were not entirely bereft of merit): at [14].
- [17]I have not found in this case that the plaintiff’s conduct of the trial - although it need not rise as high as vexation - evidences unreasonable conduct. While there is no doubt that the plaintiff resisted attempts to narrow the issues, including resisting the partial strike-out application filed on 18 October 2012 by the defendants, the legal arguments that were incorporated into the pleading by his former legal advisers were at least arguable. The major problem with the case occurred because the plaintiff’s self-representation led to his inability to grasp exactly what was necessary for him to prove his case. The mere fact that he continued to prosecute the part of the claim that I eventually struck out resulted, in my view, from a misunderstanding of the law, rather than from some unreasonable behaviour on his part.
- [18]Furthermore, the criticism that the plaintiff made no real attempt to challenge the evidence given by the defendants on critical issues was, again, in my view, the result of his inability to understand in any complete way the responsibilities that he had in prosecuting his case. In fact, it was to the considerable detriment of his own prospects of success (at least on the quantum aspects).
- [19]Accordingly, it cannot be said that the whole of the litigation since 21 April 2011 “can be seen to have been a waste of the Court’s time and the defendants’ time and a good deal of money”. Rather, the plaintiff, in engaging in the conduct which he did, was not engaging in misconduct. And, in particular, he was not engaging in making claims that he knew to be totally false, although on some matters of credit I have found against him.
- [20]Hence, overall, I do not accept that there is something in the nature of the behaviour of the plaintiff and his witness and the unfolding of the plaintiff’s evidence which justifies a finding that the plaintiff’s conduct was sufficiently reprehensible to warrant an indemnity costs order.
- [21]Thus, the defendants’ costs on the Claim will be assessed on the standard basis.
Costs of the Counterclaim
- [22]The defendants concede that costs of the Counterclaim should follow its “event”. In this case, the judgment that the plaintiff obtained was against the defendants on the Counterclaim.
- [23]Because of binding precedent in this case, the plaintiff’s costs concerning the Counterclaim will be quite limited: see Merrin v Commissioner of Police [2012] QCA 181 at [38]. In particular, a self-represented litigant cannot recover costs for time spent in preparing and conducting the litigant’s case: see Murphy v Legal Services Commissioner (No 2) [2013] QSC 253 at [4].
- [24]Accordingly, I will order that the costs of the plaintiff relevant to the Counterclaim will be assessed on the standard basis, with the recognition of the limitations on that as revealed by the authorities just discussed.