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- Unreported Judgment
Herdy v Targato (No. 2) QDC 50
DISTRICT COURT OF QUEENSLAND
Herdy v Targato (No 2)  QDC 50
MONIQUE JILLIAN NATALIE HERDY
D 214 of 2018
Maroochydore District Court
15 April 2019
Heard on the papers (last submissions received 12 April 2019)
Long SC DCJ
The Applicant is to pay the Respondent’s costs of the application, as agreed or to be assessed on the standard basis.
DISPUTE RESOLUTION & CIVIL PROCEDURE – COSTS – where the applicant’s application was dismissed – where the respondent sought costs on indemnity basis – whether respondent entitled to costs on indemnity basis
Limitation of Actions Act 1974, s 32A
Barrett v TCN Channel Nine Pty Ltd  NSWCA 304
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Mowen v The Morning Bulletin/APN & Ors  QSC 194
Mowen v The Morning Bulletin/APN & Ors  QCA 36
Schache v GP No.1 Pty Ltd  QCA 233
State of Queensland v O'Keefe  QCA 135
M White for the applicant
G Barr for the respondent
Butler McDermott for the applicant
Brennans Solicitors for the respondent
- On 28 March 2019 the court dismissed the application for orders pursuant to s 32A of the Limitation of Actions Act 1974, to extend the time limit within which the Applicant could commence an action for damages for defamation.
- The Respondent seeks an order that the Applicant pay the Respondent’s costs of the application and submits those costs should be assessed on the indemnity basis.
- The Respondent has been wholly successful in her defence of the application and the Applicant does not contest that costs should follow the event, nor suggest that there is any basis for the Court to depart from the general rule and order otherwise. However, it is contended that the circumstances do not warrant the exceptional step that the costs be ordered to be recovered on the indemnity basis.
- The Respondent points to the essential findings of the Court that:
- (a)The Applicant has not satisfied the court that it was not reasonable for her to have commenced her proposed action for defamation within the period of one year after the publication; and
- (b)Even if an extension of time was to be given, in any event it would not have been appropriate to have granted any extension to the Applicant that may have allowed her to commence the proceeding.
- And also that in dismissing the application the Court has found:
- (a)There was no objective justification for the contention by the Applicant that she expected her claim against the Respondent would be vindicated by the outcome of the Australian Health Practitioner Regulation Agency enquiry;
- (b)There was not the necessary sense of “overlap” between the investigative process and the defamation action as contemplated by the authorities;
- (c)Even if an extension of time was warranted, the essential difficulty for the Applicant was that her materials provide no explanation as to why no proceeding has yet been commenced or even formulated;
- (d)Further, there is simply no explanation as to what has occurred since the Applicant wrote to the Respondent on 17 December 2017 and until the filing of the application on 21 December 2018; and
- It is then submitted that each of those findings, particularly when viewed collectively, demonstrate that the application was without merit and was thus doomed to fail. And reference is made to Mowen v The Morning Bulletin/APN & Ors, which also involved an unsuccessful application for extension of time to pursue a defamation proceeding, with an order for the payment of costs by the unsuccessful applicant on the indemnity basis, with the following observation:
“It is the persistence in the suit by requiring the hearing of the application that was doomed to fail that involves some degree of unreasonable conduct.”
It is further pointed out that the inadequacy of the material to establish the fundamental requirements of an application to extend time in Mowen was observed both by McMeekin J at first instance and adopted by Dalton J on appeal, as relevant to the context of the matter in which costs were awarded on the indemnity basis. And that on the basis that the appeal was viewed as utterly devoid of merit, the costs of the appeal were also ordered to be paid on the indemnity basis.
- It is then submitted that the absence of evidence to explain the fundamental requirements of the application in the present case, similarly rendered the Applicant’s case to be one which was doomed to fail and her persistence in pursuing it, was thereby unreasonable. And that accordingly, a special circumstance has been shown, sufficient to depart from the normal order and to warrant an order that costs be assessed on the indemnity basis.
- For the Applicant particular reference is made to the observations of Muir JA in Schache v GP No.1 Pty Ltd, as to the power pursuant to UCPR 703(1) to award costs to be assessed on the indemnity basis and in particular reference to the well-known decision in Colgate-Palmolive Co v Cussons Pty Ltd, as follows:
“The circumstances warranting the ordering of indemnity rather than standard costs were discussed at some length by Sheppard J in Colgate-Palmolive Company v Cussons Pty Ltd. In that case, his Honour observed that the settled practice in Australia has been for costs to be awarded to the successful party to a proceeding on, what is in effect, the standard basis unless the circumstances warrant departure from that course. His Honour noted that some of the circumstances which had been thought to warrant the making of an indemnity costs order were: the making of allegations of fraud which were either known to be false or irrelevant; the engaging in misconduct that caused loss of time to the court and other parties; the commencement or continuation of proceedings 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 promulgation of a case by groundless contentions; and an imprudent refusal of an offer to compromise. Sheppard J concluded this list with the observation:
‘The question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for payment of costs other than on a party and party basis’”
- As to the Respondent’s reliance upon the approach taken in Mowen, it is correctly pointed out that not only had that applicant commenced proceedings without addressing the limitation issue, which was brought to a head by an application to strike out his claim and statement of claim pursuant to UCPR 171(1) (which McMeekin J noted specifically preserved jurisdiction for the awarding of indemnity costs), but also that the particular difficulty in that case was that the application for the extension of time required an extension beyond the maximum three year limitation period permitted by s 32A. Accordingly and as the Respondent submits, what was sought in Mowen was a remedy that was never capable of being awarded and in that sense doomed to fail, with persistence by the applicant notwithstanding having being alerted to that impediment by the respondents.
- Whilst there is some weight in the Respondent’s contentions, the better view is that this is not such an exceptional case as to warrant an order for costs to be assessed on the indemnity basis. The Respondent’s contentions are more premised in the sense of hindsight in the result, rather than the prospective position of the Applicant. And it is necessary that it be noted that:
- (a)In the first instance the Applicant sought the ruling of the Court in respect of the application of a test involving the concept of reasonableness. And whilst the task of demonstrating that it was not reasonable to have commenced the proceeding within the 12 month limitation period, is recognised as a high bar, no particular authority was referred to the Court as determinative of the issues relating to an ongoing regulatory or disciplinary process in that regard; and
- (b)Whilst there was the further noted difficulty of being unable to achieve any effective extension on the materials, that related to what has been recognised as an exercise of discretion or a normative exercise, and is not an issue of the same degree, as a necessary impediment to such an application, as was the case in the Mowen decision. Moreover and whilst the determination of it required some careful attention to the decision in Barrett v TCN Channel Nine Pty Ltd, the position was far from completely clarified by earlier authority.
- In the circumstances, the further order will be that the Applicant is to pay the Respondent’s costs of the application, as agreed or to be assessed on the standard basis.
 Respondent’s written submissions at [3(a)]; Herdy v Targato  QDC 39 at .
 Respondent’s written submissions at [3(b)]; Herdy v Targato  QDC 39 at .
 Respondent’s written submissions at [6(a)]; Herdy v Targato  QDC 39 at .
 Respondent’s written submissions at [6(b)]; Herdy v Targato  QDC 39 at .
 Respondent’s written submissions at [6(c)]; Herdy v Targato  QDC 39 at .
 Respondent’s written submissions at [6(d)]; Herdy v Targato  QDC 39 at .
  QCA 135.
 Respondent’s written submissions at [6(e)]; Herdy v Targato  QDC 39 at .
  QSC 194;  QCA 36.
  QSC 194 at .
  QCA 233 at 
 (1993) 46 FCR 225.
 At .
 At -.
 At .
  NSWCA 304.
- Published Case Name:
Herdy v Targato (No. 2)
- Shortened Case Name:
Herdy v Targato (No. 2)
 QDC 50
Long SC DCJ
15 Apr 2019