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PG v State of Queensland (No 2)[2023] QDC 132

PG v State of Queensland (No 2)[2023] QDC 132

DISTRICT COURT OF QUEENSLAND

CITATION:

PG v State of Queensland (No 2) [2023] QDC 132

PARTIES:

PG

(plaintiff)

v

STATE OF QUEENSLAND

(respondent)

FILE NO/S:

BD2513/21

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

28 July 2023

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGES:

Smith DCJA

ORDER:

I order the defendant pay 66% of the plaintiff’s costs of the application filed on 11 May 2023 to be assessed on the standard basis.

CATCHWORDS:

COSTS – where the plaintiff sought disclosure of documents of claims of other claimants relating to alleged sexual abuse at the Brisbane Youth Detention Centre – where the plaintiff was substantially successful in his application – where the application for disclosure was made after the close of pleadings and after matter listed for trial

Uniform Civil Procedure Rules 1999 (Qld) rr 212, 223, 225, 470, 681, 684, 687

Eaton v Rare Nominees Pty Ltd [2017] QCA 25, cited

Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72, applied

PG v State of Queensland [2022] QDC 231, cited

PG v State of Queensland [2023] QDC 109, cited

Re Cooke [1997] 1 Qd R 15, cited

Redden v Chapman (1949) 50 SR (NSW) 24, cited

State of Queensland v Nixon [2002] QSC 296, cited

Dal Pont, Law of Costs (LexisNexis, 5th ed 2021), cited

COUNSEL:

G Diehm KC with J Liddle for the plaintiff

R Douglas KC with J V Pagliano for the defendant

SOLICITORS:

Shine Lawyers for the plaintiff

Crown Solicitor for the defendant

Introduction

  1. [1]
    The plaintiff seeks an order that the defendant pay his costs of the application filed 11 May 2023, to be assessed on a standard basis.
  2. [2]
    On 20 June 2023, judgment was given in favour of the plaintiff on an application for leave under rule 470 and rule 223 of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”).[1] It was ordered the defendant disclose to the plaintiff the documents sought, subject to protections, and the parties would be heard on the question of costs.
  3. [3]
    The plaintiff and defendant have each filed further written submissions as to costs.

Plaintiff’s submissions

  1. [4]
    In written submissions dated 3 July 2023, the plaintiff relies on UCPR 681(1), that costs of an application in a proceeding are in the discretion of the Court but follow the event unless the Court orders otherwise.
  2. [5]
    Here, the starting point is that costs would ordinarily follow the event unless a reason to depart from that position is identified (the “event” being the interlocutory application that has been determined).
  3. [6]
    The plaintiff submits the application here did not turn on any evidence which might be viewed differently after a trial, nor did it turn on preliminary evaluation of the strength of the parties’ respective cases. Hence, it is not analogous to kinds of applications where costs might more readily be reserved or made costs of the proceeding.[2]
  4. [7]
    It is submitted that the fact there was delay in the plaintiff seeking relief from non-disclosure until after the signing of the request for trial date and his initial seeking to deal with the issue via a subpoena (which it concedes was inappropriate) is not relevant to this costs application. This is because a costs order has already been made against the plaintiff on this point, when in dealing with the prior subpoena application, Her Honour Judge Rosengren adjourned the trial and ordered the plaintiff pay the defendant’s costs thrown away by the adjournment, and his solicitors to pay 85% of Mr Dwyer’s (the applicant’s) costs of the application to set aside the subpoena on an indemnity basis.[3] In any event, the plaintiff would have still had to bring the application the subject of this order prior to the signing of the request for trial date. The defendant failed to meet its disclosure obligations and therefore signed a request for trial date when it ought not have.
  5. [8]
    The plaintiff argues the application was necessary because of the defendant’s failure to comply with its disclosure obligations under the UCPR and failure to remedy its default once the issues were drawn to its attention.[4] This is relevant to the justification of costs following the event.
  6. [9]
    The failure to disclose was a serious default. UCPR 225(1)(c) recognises that a party who fails to disclose a document may be ordered to pay costs of a proceeding or part of a proceeding.
  7. [10]
    The plaintiff requested disclosure of the documents sought almost two years ago on 8 September 2021, and reiterated this on 19 January 2022. The defendant refused to make the disclosure and claimed privilege with respect to the notice of claim documents, maintaining this position until 8 December 2022 and eventually disclosing a bundle of 52 notice of claim forms on 24 February 2023. The forms were heavily redacted without agreement by the plaintiff or relief from the Court. The defendant disclosed further relevant documents after the filing of the application, on 5 June 2023 and 7 June 2023. The plaintiff describes the disclosure as ‘drip-fed’.
  8. [11]
    The plaintiff submits the history of the disclosure in this matter demonstrates the necessity of the plaintiff in bringing the application. The defendant was otherwise unprepared to make not only full disclosure in terms of the Court’s orders now made but also disclosure of the documents it was required to disclose on the narrower position it had adopted.
  9. [12]
    In conclusion, the plaintiff was effectively wholly successful in his application. The application was necessary; the defendant failed to fulfil its disclosure obligations whilst on notice of the plaintiff’s concerns. There are no substantial countervailing considerations that would favour departing from the usual order that costs follow the event and the interests of justice dictate the plaintiff ought be awarded costs of the application.

Defendant’s submissions

  1. [13]
    In its written submissions in response to the plaintiff’s submissions, the defendant argues in summary:
    1. (a)
      The plaintiff brought the application beyond any scope which was previously foreshadowed to the defendant and at a very late stage in the proceeding (more than eight months after the filing of the request for trial date, requiring  leave of the Court);
    2. (b)
      The plaintiff  was only partially successful on the application, particularly in relation to the temporal period of disclosure sought and any issue of whether legal professional privilege over certain documents ought to be abrogated, those being matters of importance and scope to the disclosure sought;
    3. (c)
      There were and remain a number of relevant, significant pleading deficiencies in the plaintiff’s pleading, such that it was difficult for the defendant to have understood its disclosure obligations as extending to the further disclosure which has been ordered.
  2. [14]
    The defendant relies on principle that the discretion to order costs inherently carries with it the power to control their quantum and determine liability.[5]  The relevant question, therefore, necessitates an assessment of what a proper exercise of that discretion that does justice to the parties must entail by considering all of the relevant considerations.[6]
  3. [15]
    While a wholly successful party should ordinarily receive their costs,[7] where each party can be said to have partially failed or succeeded, orders that reflect the litigants’ respective failures and success may be appropriate. UCPR 684 provides that the Court may make an order for costs in relation to a particular question or part of a proceeding, including declaring a percentage of the costs attributable to that question or part to which the order relates. This is compatible with the power of the Court to depart from the usual rule that costs ordinarily follow the event.
  4. [16]
    The Court ought consider the respective failures and success of each the plaintiff and defendant. It is also necessary for the Court to consider the context in which the application was brought, the pleadings and correspondence exchanged between the parties.
  5. [17]
    The defendant argues seven reasons which favour a departure from the ordinary rule.
  6. [18]
    The first is  the delay and requirement of leave pursuant to UCPR 470. The factors of general delay and leave to apply ought be considered.
  7. [19]
    The second is in relation to the protections which were ordered over the unredacted versions of the notices of claim, which the defendant has adopted. The plaintiff did not propose such protections prior to the application, therefore the defendant was not provided opportunity to form a view about such an arrangement being put in place without the need for an application.
  8. [20]
    Thirdly, the plaintiff was only partially successful on the issue of whether alleged incidents which occurred after the plaintiff’s discharge from Brisbane Youth Detention Centre were properly required to be disclosed.  The plaintiff argued for a period of disclosure of five years after the plaintiff’s discharge. Ultimately, the order made required disclosure of documents for a period of three years after the plaintiff’s discharge and it can be inferred there would have been significantly more documentation for an additional two years.
  9. [21]
    Fourthly, the order made in respect to document categories 1(b), 1(c) and 1(e) makes consideration for valid claims of legal professional privilege. The plaintiff did not succeed in implicitly arguing privilege did not resonate with those documents.
  10. [22]
    Fifthly, as regards the finding at [77(a)] of the judgment that further attention and particularisation of the plaintiff’s pleadings occur once disclosure is complete, the defendant could not have assumed the pleadings to be made against it at some future point and cast disclosure beyond that required of it at the time. The defendant’s disclosure obligations are only to disclose documents that are “directly relevant to an allegation in issue in the pleadings”. The defendant acknowledges its duty of disclosure is ongoing. While the further document disclosure is accepted, it remains to be seen what relevance and utility can be made of it. Contrary to the plaintiff’s submission, this application is a case which will inevitably turn on one evaluation of the strength of the parties’ respective cases.
  11. [23]
    Six - the plaintiff “did not press” the request for category 1(d) documents because upon hearing, it considered category 1(c) largely picked up the contents of this category. This fails to explain why the plaintiff requested the discrete categories in the application in the first place. The plaintiff’s written submissions indeed treated it as a distinct category spawning discrete disclosure.
  12. [24]
    Seven – the conduct and scope of the application. The relevant communications requesting disclosure of the defendant[8] were a “moving feast”. The focus of the requests for all intents and purposes was the notices of claim. Little to no detail was provided for the defendant to identify what documents were requested and why they may be disclosable with reference to the pleadings as they stood (and still stand). The plaintiff conducted the proceeding up to and including the hearing of in a way which promoted a lack of particularity and a failure to put the defendant on notice of the case which is pleaded against it or the application which it was expected to respond. The plaintiff’s requests for further disclosure up until the point of filing the application do not reflect the form and scope of categories 1(b) to 1(e) which were eventually the subject and scope of the hearing on 8 June 2023.
  13. [25]
    The defendant contends also that a contextual analysis of the application leads to an observation that the Court of Appeal orders on costs point the way to the order apt, namely being left to the trial judge.
  14. [26]
    In all of the circumstances, the Court ought to exercise its discretion and reserve the costs of the application to the trial judge, or alternatively, order those costs to be the plaintiff’s costs in the cause in the proceeding. Such an order will not necessarily deprive the plaintiff of costs, and will appropriately afford both parties the opportunity to resolve the issues which arose within the hearing of the application and remain in dispute.

Plaintiff’s reply

  1. [27]
    In reply to the defendant’s submissions, the plaintiff argues that scrutinised individually, the seven reasons the defendant offers in favour of the court departing from an order that costs follow the event do not weigh against such an order. Considered collectively, and taken at their highest, they do not justify departure.
  2. [28]
    The plaintiff relies on its earlier submissions with respect to the first reason, namely delay.
  3. [29]
    With respect to the second reason, namely the protection regime, the defendant was responsible for meeting its disclosure obligations. It was required to identify the appropriate means of dealing with the confidentiality concerns consistent with its obligations and was in a better position than the plaintiff to propose this course. The defendant maintained at the hearing that the documents should remain redacted once the matter was raised, thus there is no reason to believe it would have been earlier agreeable to a protection regime and this submission should be rejected.
  4. [30]
    As regards the third reason, the temporal period of disclosure, the plaintiff relies on its earlier submission that the order still provided the plaintiff substantially the relief sought and the Court accepted the appropriate period was a matter of degree. The case for the defendant was not that a shorter period was more appropriate, it was that documents relating to events any time after the subject abuse were not disclosable.
  5. [31]
    As regards reason four, the privileged documents, the plaintiff did not implicitly or otherwise seek the disclosure of documents for which there was a valid claim of legal professional privilege. The UCPR clearly provides the duty of disclosure does not apply to such documents.[9] The documents sought by the plaintiff were not documents which the defendant had identified in a list of documents or anywhere else as being disclosable subject to a claim of legal professional privilege. Rather, they were documents the defendant had identified as not being disclosable at all. The recognition of the defendant’s right to assert a valid claim to privilege had no bearing on the need for or scope of the application and has no bearing on costs.
  6. [32]
    As regards reason five, that the plaintiff may need to amend their pleadings following disclosure does not imply that it is deficient. In many cases parties become aware of new facts upon receipt of disclosed documents. While they need to be disclosed, they still may need to be specifically pleaded to be used at trial. The defendant’s submissions on this point seek to relitigate the grounds which unsuccessfully opposed the application. The Court has decided the defendant resisted documents directly relevant to an allegation in issue in the pleadings. Whether the plaintiff amends his pleadings or relies on the further documents at trial is irrelevant to the costs of the application. His interest in bringing the application is to decide for himself whether he will use them at the trial, and he need not have had to apply to the Court to obtain disclosure.
  7. [33]
    Six, it was always the case that the documents in category 1(d) were picked up in category 1(c). The plaintiff did not narrow the scope of the application by not pressing category 1(c). In fact, his outline of submissions on the application identified that paragraph 1(d) sought a ‘subset’ of the documents captured in paragraph 1(c). This had no bearing on the scope of the argument at the hearing or the need for the application and has no real bearing on costs.
  8. [34]
    Seven, as to the conduct and scope of the application, the plaintiff relies on its earlier submissions that the application was necessary because of the defendant’s default. The defendant was given notice of the issues raised by the application in the several communications which requested disclosure.
  9. [35]
    With respect to the defendant’s reference to the Court of Appeal’s reservation of costs being an indication of how this Court ought deal with costs, the circumstances in which that order were made are not analogous and do not offer guidance to this Court. Costs were reserved rather than made costs in the proceeding because the applicant (Mr Dwyer) is not a party in the proceeding. In any event that order was made by consent in a different proceeding involving different issues and different parties and has no bearing on the considerations of this Court.
  10. [36]
    In conclusion, the seven reasons of the defendant do not warrant departing from the usual course. The plaintiff’s success on the application is the most significant factor. The defendant fails to recognise their own default and opposition to disclosure and continues an assumption it was for the plaintiff to cause it to meet its obligations. Its conduct of the application shows the failure to make the disclosure ordered was not due to a lack of awareness of what the plaintiff was looking for but because it wished to argue they were not obliged to disclose at all.

Discussion

  1. [37]
    I have taken into account the submissions of the parties and the evidence relied upon.
  2. [38]
    There is no doubt that costs ordinarily follow the event as both parties agree.[10] Despite this there is a broad discretion in the court under UCPR 687 to order a party to pay another party a percentage of costs or an amount as is decided by the court.
  3. [39]
    In Oshlack[11] it was accepted that there can be conduct of a successful party which disentitles it to costs.
  4. [40]
    There is also no doubt a continuing obligation on a defendant to disclose relevant documents and under UCPR 225 there are cost consequences for a failure to do so.
  5. [41]
    In this case it is my assessment that the plaintiff was substantially successful in its application although of course there were restrictions in the order made such that documents the subject of legal professional privilege were not ordered to be disclosed and the time period of other complaints was restricted by 2 years.
  6. [42]
    Ordinarily though, absent other factors, I would have ordered the defendant to pay all of the plaintiff’s costs. But there are other factors present. These factors are:
    1. (a)
      There is no doubt the pleadings will most likely need further attention once disclosure is complete. There is some merit to the defendant’s argument that it was difficult to know exactly the limits of the plaintiff’s claim.
    2. (b)
      This application for disclosure was made very late - after the request for trial date was signed and indeed after the matter was listed for trial. The plaintiff required leave to make the application thus requiring the indulgence of the court.
    3. (c)
      There were some concessions made by the plaintiff during the argument as to the categories of documents sought.
    4. (d)
      The requests for disclosure varied and it seems to me it was not until a relatively late stage that the plaintiff realised the importance of the documents the subject of the application.
  7. [43]
    In all of the circumstances, in the exercise of my discretion I have decided to order the defendant pay 66% of the plaintiff’s costs of the application filed 11 May 2023 to be assessed on the standard basis.

Footnotes

[1]PG v State of Queensland [2023] QDC 109.

[2]  The plaintiff cites Muir J in State of Queensland v Nixon [2002] QSC 296 and Eaton v Rare Nominees Pty Ltd [2017] QCA 25.

[3]PG v State of Queensland [2022] QDC 231.

[4]  In the Affidavit of Amy Carlson filed 24 May 2023, exhibits AC-1, AC-3, AC-24, AC-27, AC-30.

[5]  Dal Pont, Law of Costs (LexisNexis, 5th ed 2021), [6.14]; citing Re Cooke [1997] 1 Qd R 15 at 21.

[6]  Dal Pont [6.1]; Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72.

[7]Redden v Chapman (1949) 50 SR (NSW) 24 at 25; Oshlack, supra at p 97.

[8]  Exhibits AC1, AC3, AC24, AC26, AC27, AC30, AC33 and AC36 to the affidavit of Amy Carlson filed 24 May 2023.

[9]  UCPR 212(a).

[10]  UCPR 681 and Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at [67]-[68].

[11]  [1998] HCA 11; (1998) 193 CLR 72 at [69].

Close

Editorial Notes

  • Published Case Name:

    PG v State of Queensland (No 2)

  • Shortened Case Name:

    PG v State of Queensland (No 2)

  • MNC:

    [2023] QDC 132

  • Court:

    QDC

  • Judge(s):

    Smith DCJA

  • Date:

    28 Jul 2023

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Eaton v Rare Nominees Pty Ltd [2017] QCA 25
2 citations
Jump To
Cite 1 - [2017] QCA 25
Cite 2 - [2017] QCA 25
Grealy v State of Queensland [2022] QDC 231
2 citations
Jump To
Cite 1 - [2022] QDC 231
Cite 2 - [2022] QDC 231
Oshlack v Richmond River Council (1998) 193 CLR 72
4 citations
Jump To
Cite 1 - (1998) 193 CLR 72
Cite 2 - (1998) 193 CLR 72
Cite 3 - (1998) 193 CLR 72
Cite 4 - (1998) 193 CLR 72
Oshlack v Richmond River Council (1998) HCA 11
4 citations
Jump To
Cite 1 - (1998) HCA 11
Cite 2 - (1998) HCA 11
Cite 3 - (1998) HCA 11
Cite 4 - (1998) HCA 11
PG v State of Queensland [2023] QDC 109
2 citations
Jump To
Cite 1 - [2023] QDC 109
Cite 2 - [2023] QDC 109
Re Cooke[1997] 1 Qd R 15; [1995] QSC 146
2 citations
Jump To
Cite 1 - [1997] 1 Qd R 15
Cite 2 - [1997] 1 Qd R 15
Redden v Chapman (1949) 50 S.R. N.S.W. 24
2 citations
Jump To
Cite 1 - (1949) 50 S.R. N.S.W. 24
Cite 2 - (1949) 50 S.R. N.S.W. 24
State of Queensland v Nixon [2002] QSC 296
2 citations
Jump To
Cite 1 - [2002] QSC 296
Cite 2 - [2002] QSC 296

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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