CJG v TG[2022] QDC 48

DISTRICT COURT OF QUEENSLAND

Background

1. [1]
   On 28 January 2020, I ordered that CJG’s application for a stay pending the hearing of his appeal filed 14 December 2021 be dismissed and reserved the costs of that application.  I also indicated that, in the event that either party sought a determination on the issue of costs, the parties were to file a written outline of argument limited to four pages.  The parties have each done so.  While there is some debate in the correspondence about whether or not the parties have limited themselves to four pages, the outlines, as opposed to the affidavit material, do not exceed 4 pages.  I have had regard to all of the material.  In addition, following having identified a preliminary view that rule 304 of the Uniform Civil Procedure Rules (UCPR) had no application to the matter, further written submissions were provided on 10 March 2022.
2. [2]
   Following my order dismissing the application for a stay, the appellant filed a Notice of Discontinuance purportedly under rule 304 of the UCPR.  He had indicated at the hearing that he proposed to do so. 

The parties’ original submissions

3. [3]
   The appellant relies on s 157 of the Domestic and Family Violence Protection Act 2012 (the Act).  He says that there should be no order as to costs because the matters set out in s 157(2) of the Act have not been satisfied.  He relies upon AKM v CJM ^[1] at [79] and BAK v Gallagher & Anor (No. 2)^[2] at [9] in this respect.
4. [4]
   However, as is clear from AKM at [80] and BAK at [15], [16], [17] and [18]^[3], s 157 has no application to an appeal of a matter decided under the Act.
5. [5]
   The underlying basis of the appellant’s submission as to the operation of s 157 is at odds with those authorities I have referred to in the previous paragraph amongst others and I do not accept those submissions. 
6. [6]
   The respondent’s submissions rely on HZA.  The respondent seeks her costs of the application and of the appeal.  Orders are sought that those costs be paid on the indemnity basis.
7. [7]
   The costs are sought on the basis that the usual rule in rule 681 of the UCPR applies.  However, it should be noted that in Urquhart v Partington^[4] the Court of Appeal identified that it is rule 766(1)(d) of the UCPR that applies in appeals and not rule 681(1), although the general principle that a successful party will ordinarily be entitled to their costs still applies.

Does rule 307 of the UCPR have any application to an appeal?

8. [8]
   As I have mentioned the parties were advised of the preliminary view that rule 304 (and thus rule 307) were irrelevant to an appeal.  The reasons for that view follow.
9. [9]
   Rule 307 of the UCPR provides that a party who discontinues a proceeding is liable to pay the costs of the party to whom the discontinuance relates up to the discontinuance.  The appellant sought to discontinue the matter under rule 304 of the UCPR.
10. [10]
    The effect of rule 307 in circumstances of discontinuance under rule 304 is clear.  That is, the party that discontinues is liable to pay the other party’s costs up to the discontinuance. 
11. [11]
    However, while the appellant did not suggest that rules 304 and 307 do not apply, it seems to me that they do not.  The term “proceeding” is not defined in the UCPR other than for the purposes of Chapter 9, Part 5 dealing with offers to settle.  However, rule 8 of the UCPR provides that a proceeding starts when the originating process is issued by the court.  Subrule (2) then sets out the different types of initiating process, including a notice of appeal, which could indicate that rule 304 dealing with discontinuing a proceeding, has potential application to an appeal.  However, subrules 304(1)(a) and (b) deal only with proceedings commenced by claim or application.  No mention is made as to at what stage of an appeal it might still be discontinued without leave.
12. [12]
    Further, the reference to the plaintiff or applicant in the opening words of rule 304 does not seem to envisage application to an appellant.  It is much more likely, in my view, that one of the provisions from Chapter 18 of the UCPR applies, such as, for example, rule 762 dealing with dismissal by consent, or rule 764 dealing with consent orders more broadly.  Of course, the basis of any consent is a matter for the parties.
13. [13]
    It is not necessary to consider this topic any further though.  In my view, whether or not rule 304 applies, is really immaterial. 

The parties’ supplementary submissions

14. [14]
    The appellant in his supplementary submissions appropriately concedes that he should pay the costs of the application but says those costs should be assessed on the standard basis.  As to the appeal, he submits that if costs are to be ordered they should not go beyond 7 February 2022 (when the appeal was withdrawn) but says that the appropriate order is that each party bear their own costs pursuant to rule 762(3)(e) of the UCPR.  That provision simply sets out one of the matters that the parties may agree upon in respect of consent dismissal and has nothing to do with the circumstances here, where there is plainly no agreement as to the question of costs. 
15. [15]
    The respondent now submits that rules 304 and 307 do not apply and otherwise sets out that she consents to the appeal being dismissed but seeks costs of the appeal on the indemnity, or alternatively, the standard basis.  The underlying basis of the submission is that that there is no reason costs should not follow the event.
16. [16]
    The appellant did not wish to continue to prosecute the appeal he instituted.  An order dismissing the appeal under rule 762 of the UCPR should be made in such circumstances.  The question of costs should be dealt with under rule 766(1)(d) of the UCPR.  In this matter, there is no reason why the costs should not follow that event.  I do not accept that there was anything about the conduct of the matter that suggests a different order is appropriate.  Although the appellant contends that the respondent should be limited to a costs order for costs up to 7 February 2022, that would exclude costs in relation to the submissions on the question of costs of the appeal.  There is no reason why that should occur where the appellant was maintaining that there should be no costs payable.     

Indemnity costs

17. [17]
    The application for indemnity costs is put on the basis of the familiar principles from the reasons of Sheppard J in Colgate-Palmolive Co v Cussons Pty Ltd.^[5]  In particular, it is contended that the proceedings were commenced for an ulterior motive, in wilful disregard of known facts or clearly established law, the contentions were groundless and the appellant imprudently did not accept an offer of compromise.
18. [18]
    Dealing with those matters commencing with the last, the offer is an invitation to capitulate rather than one of compromise, although that is understandable given the nature of the proceedings.  It required that the appellant withdraw the notice of appeal “immediately” or perhaps within 48 hours.  It was made 2 days after the appeal was commenced.  I do accept that, objectively considered, the appellant’s prospects were poor, although relevant to this the appellant was self-represented which notoriously makes such objective reflection less likely. 
19. [19]
    While the making of the offer fortifies my view that a costs order ought to be made against the appellant despite the fact that he is self-represented, it does not, in my view, justify an order on the indemnity basis. That might have been different if the appellant was not self-represented, despite the earlier stage at which the offer was made and the short period for which it was open.
20. [20]
    Nor do I accept that the proceedings were commenced for any ulterior motive.  The appeal may ultimately have been misconceived as I indicated was my view in argument on the stay application, but that does not compel a conclusion that the proceedings were commenced for an ulterior motive or that they were commenced in “wilful” disregard of known facts or clearly established law.  At no point did I doubt the appellant’s belief in the underlying basis of the appeal, although I had a clear view as to the appropriate outcome.
21. [21]
    I do not consider that it is appropriate in this matter to treat a self-represented lawyer in emotionally charged litigation as a “sophisticated” litigant.  Clearly, any ability to objectively view the matter is likely to be significantly impaired when a lawyer acts for him or herself.  I do not consider it appropriate from a costs point of view to start with the proposition that such a person should be treated differently from any other self-represented litigant. 
22. [22]
    In order to succeed on the appeal, the appellant needed to show error.  Relevantly, on the stay application, I thought that his prospects of doing so were negligible.  That is quite a different thing from doubting whether the matter was commenced for a proper purpose.  This is exactly the kind of error that one might expect that a self-represented litigant (whether a trained lawyer or not) might make. 
23. [23]
    For the reasons set out above, I am not prepared to order that costs be paid on the indemnity basis.
24. [24]
    The order of the court will be that

1. The appellant pay the respondent’s costs of and incidental to the appeal to be assessed on the standard basis.