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- Unreported Judgment
Paradise Grove Pty Ltd v Stubberfield QSC 3
SUPREME COURT OF QUEENSLAND
8 January 2002
27 September and 1 November 2001
PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – where interlocutory orders made against defendant – where Court of Appeal struck out statement of claim - where plaintiff later consented to judgment in favour of defendant – whether Court of Appeal’s order striking out statement of claim was a “fact” giving single judge of Trial Division power to set aside costs ordered against defendant in previous interlocutory applications and/or in the Court of Appeal pursuant to r 668 of Uniform Civil Procedure Rules
Uniform Civil Procedure Rules 1999 (Qld), r 280(1), r 293(1), r 307, r 668, r 689(1), r 703, r 704
Arundel Chiropractic Centre Pty Ltd v Deputy Commissioner of Taxation (2001) 179 ALR 406, considered.
Colgate-Palmolive Company & Another v Cussons Pty Ltd (1993) 46 FCR 225, considered.
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1998) 81 ALR 397 at 401, considered.
O'Neill v Mann  FCA 1680; ACT G 15 of 1994 and ACT G 29 of 1994, 29 November 2000, considered.
Rockett v The Proprietors of “The Sands” BUP 82  QCA 99; Appeal No 4355 of 2000, 20 March 2001, distinguished.
Stubberfield v Paradise Grove Pty Ltd  QCA 299; Appeal No 4796 of 2000, 28 July 2000, considered.
Woods v Sheriff of Queensland (1895) 6 QLJ 163, considered.
The first defendant/applicant appeared on his own behalf and (by leave) on behalf of the second defendant/applicant
MD Martin for the respondent plaintiff
The first defendant/applicant appeared on his own behalf and (by leave) on behalf of the second defendant/applicant
Baker Johnson for the respondent plaintiff
- WILSON J: On 10 September 2001 an application was filed by the first and second defendants (Mr and Mrs Stubberfield) seeking the following relief:
(i)an order that the action be dismissed and judgment entered for the defendants pursuant to r 280(1) or r 293(1) of the Uniform Civil Procedure Rules;
(ii)a declaration pursuant to rr 689(1) and 307(1)(a) of the UCPR that the defendants are entitled to recover from the plaintiff -
(a)out of pocket expenses in action 7582 of 1996, appeal 2071 of 2000, application 4796 of 2000, and all interlocutory proceedings thereon;
(b)“any costs determined by the Court to be recoverable by solicitors Whitman & Co relating to the proceedings mentioned in paragraph (a) above, together with any costs awarded against or incurred by defendants in contesting the validity and sum of Whitman’s claim on the indemnity basis[*]”;
(iii)a declaration that all costs orders in favour of the plaintiff in relation to action 7852 of 1996, appeal 2071 of 2000, application 4796 of 2000 and interlocutory proceedings be forever stayed;
(iv)costs of the application.
- At the commencement of the hearing Mr MD Martin of counsel, who appeared for the respondent plaintiff, informed the Court that his client did not oppose the action being dismissed or struck out with an order for costs on the standard basis. Accordingly, I order that the plaintiff’s claim against the defendants in proceeding no S 7852 of 1996 be dismissed. I shall come to the question of costs shortly.
- Appeal No 2071 of 2000 and Application No 4796 of 2000 were both matters before the Court of Appeal relating to interlocutory orders in proceeding S 7852 of 1996 in the Trial Division.
- There is a long history of litigation between the parties. The background was summarised by the Court of Appeal in Stubberfield v Paradise Grove Pty Ltd  QCA 299; Appeal No 4796 of 2000, 28 July 2000. The course of proceeding S 7852 of 1996 in the Trial Division and Appeal No 2071 of 2000 and Application No 4796 of 2000 in the Court of Appeal may be summarised as follows –
19 September 1996
Paradise Grove Pty Ltd (the plaintiff) commenced proceeding S 7852 of 1996 against Mr and Mrs Stubberfield claiming damages for malicious prosecution and damages for abuse of process.
17 October 1996
Statement of claim delivered.
14 November 1996
12 January 2000
Plaintiff filed an application against both defendants seeking orders for disclosure.
7 February 2000
Defendants filed an application that the action be struck out and judgment entered for the defendants; alternatively that the claims against the second defendant be struck out.
10 February 2000
Both applications were heard by Shepherdson J, who ordered that:
(1)the defendants’ application be refused;
(2)“the defendants pay the applicant’s costs of and incidental to the application to strike out, to be assessed”;
(3)the defendants give disclosure within 28 days.
8 March 2000
A notice of appeal against the decision of Shepherdson J was filed - it was apparently an appeal by Mr Stubberfield only. (Appeal No 2071 of 2000.)
10 March 2000
The plaintiff filed an application that, in default of disclosure by the defendants as per the order of Shepherdson J, the defence be struck out; alternatively that the defence be struck out as embarrassing and vexatious.
20 March 2000
The application came before Douglas J, who ordered that:
(1)the time for disclosure be extended by a further 30 days;
(2)in default, the defence be struck out;
(3)an affidavit of the solicitor for the plaintiff be sufficient proof of non-compliance;
(4)“the defendants pay the plaintiff’s costs of and incidental to this application, to be assessed.”
(On 26 April 2000 those costs were assessed in the sum of $1,716.35.)
20 April 2000
The plaintiff filed an application against the defendants that the defence be struck out as embarrassing and vexatious.
9 May 2000
The application was listed for hearing. The day before the hearing the defendants filed amended defences. White J ordered that:
(1)the application be dismissed;
(2)“the respondent/defendant [singular] pay the applicant/plaintiff’s costs of and incidental to this application to be assessed unless agreed.”
(On 10 July 2000, by consent, those costs were assessed in the sum of $1,500-00.)
2 June 2000
Mr Stubberfield filed Application No 4796 of 2000 in the Court of Appeal. An amended application was filed on 23 June 2000. Multiple forms of relief were sought, including reopening of previous proceedings in the Court of Appeal, and -
“6.Stay the Orders as to costs made in the Supreme Court at Brisbane of
His Honour Justice Shepherdson of 14th February 2000; and
His Honour Justice Chesterman [sic] of 20th March 2000; and
Her Honour Justice White of 9th May 2000; in action No 7852 of 1996.
3 July 2000
Application No 4796 of 2000 was heard by the Court of Appeal.
28 July 2000
The Court of Appeal gave judgment in Application No 4796 of 2000.
The application was refused and the applicant (Mr Stubberfield) was ordered to pay the costs of the respondent Paradise Grove Pty Ltd to be assessed.
(On 12 September 2001 those costs were assessed in the sum of $4,747-87.)
The Court of Appeal said at para  of its judgment:
“Application for stays of Supreme Court orders for costs
An appeal has been filed in respect of Shepherdson J’s order of 14 February, but no appeal is pending from the order of Douglas J of 20 March or of White J of 9 May. The strength or otherwise of the appeal against Shepherdson J’s order was not argued. No grounds have been advanced suggestive of error in any of the other determinations. There is no basis on which a stay of any of these orders ought to be granted. Those applications will therefore be refused.”
22 December 2000
Appeal 2071 of 2000 was listed for directions. The Court of Appeal made a costs order against Mr Stubberfield.
(On 12 September 2001 those costs were assessed in the sum of $599-77.)
23 March 2001
Appeal No 2071 of 2000 was heard and the following orders were made by the Court of Appeal:
(2)strike out statement of claim, vacate order below and no order as to costs of these proceedings or below.
10 September 2001
This application was filed.
- Under cover of a letter of 26 March 2001 (three days after the Court of Appeal decision striking out the statement of claim), the plaintiff submitted a notice of discontinuance for the defendants’ signature. It included “without any further order as to costs”, contrary to r 307 of the UCPR by which the defendants were entitled to costs (except, of course, any costs the subject of an order of the Court). The plaintiff has now consented to judgment against it. It does not oppose an order that it pay the defendants’ costs of and incidental to proceeding S 7852 of 1996 (except for costs already dealt with by orders of the Court).
- For the period the defendants were unrepresented, they are not entitled to any professional charges, but may recover disbursements. For the period they were represented by Whitman & Co, they are entitled to professional charges and disbursements.
- The defendants seek those costs on the indemnity basis. They submit that the plaintiff always knew that its case could not succeed and that its consenting to judgment is an acknowledgment of that. The plaintiff submits that those costs should be assessed on the standard basis.
- Costs are to be assessed on the standard basis (formerly called the party and party basis) in the absence of a rule or order to the contrary: UCPR r 703. The Court has an unfettered discretion to order that they be assessed on the indemnity basis (formerly called the solicitor and client basis): r 704. This discretion is sparingly exercised: see, for example, the remarks of Callinan J in Arundel Chiropractic Centre Pty Ltd v Deputy Commissioner of Taxation (2001) 179 ALR 406 at 415. There is a helpful and comprehensive review of relevant authorities in Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 per Sheppard J. Of course, every application for indemnity costs must be considered on its own merits, but one circumstance which may warrant an order for indemnity costs is that the plaintiff knew or, if properly advised, should have known that it had no chance of success: Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 at 401.
- The plaintiff’s reasons for consenting to judgment are not express. Mr Stubberfield relied on passages in the transcript of argument before the Court of Appeal on the hearing of Appeal No 2071 of 2000 where members of the Court were sceptical about the plaintiff’s ultimate prospects. However, those were mere expressions of tentative opinions, and it should be borne in mind that the Court of Appeal only struck out the pleading, thus giving the plaintiff the opportunity to replead. Why it did not avail itself of that opportunity is not clear: perhaps it made a commercial decision not to divert any more time or resources into disputation with the defendants; perhaps it considered that any victory might be pyrrhic; perhaps it knew that its case was hopeless. It would be wrong for me to speculate on why it took no further action and eventually consented to judgment against it. There is insufficient evidence before me to justify drawing the inference that it did so because it always knew its case was hopeless.
- Accordingly, I make an order for costs in the defendants’ favour, those costs to be assessed on the standard basis.
- I do not have jurisdiction to declare that the defendants are entitled to recover from the plaintiff disbursements in Appeal No 2071 of 2000, Application No 4796 of 2000 or any interlocutory proceedings thereon. They were proceedings in the Court of Appeal where costs orders were made. I have no jurisdiction to set aside or vary those orders.
- Mr Stubberfield submitted that I could stay the costs orders of the Court of Appeal, and relied on O'Neill v Mann  FCA 1680; ACT G 15 of 1994 and ACT G 29 of 1994, 29 November 2000, a decision of Finn J. However, that was an application for leave to discontinue proceedings. His Honour granted leave on condition that a certain costs order made by the Full Court not be enforced. He observed expressly in para  of the reasons for judgment that he could not set aside the order of the Full Court. He did not purport to stay the order of the Full Court.
- The costs orders made by Douglas and White JJ related respectively to an extension of time for disclosure and an application to strike out the defence. They were validly made and, despite the plaintiff’s claim being dismissed, will continue to be of effect unless specifically set aside on appeal.
- The present application was relisted for further argument because I wanted to receive submissions on the possible application of r 668 of the UCPR. That rule provides –
“Matters arising after judgment
668.(1)This rule applies if -
- facts arise after an order is made entitling the person against whom the order is made to be relieved from it; or
- facts are discovered after an order is made that, if discovered in time, would have entitled the person against whom the order is made to an order or decision in the person’s favour or to a different order.
(2)On application by the person mentioned in subrule (1), the court may stay enforcement of the order against the person or give other appropriate relief.
(3) Without limiting subrule (2), the court may do one or more of the following -
- direct the proceedings to be taken, and the questions or issue of fact to be tried or decided, and the inquiries to be made, as the court considers just;
- set aside or vary the order;
- make an order directing entry of satisfaction of the judgment to be made.”
- This rule does not provide a substitute for an appeal. Rather, it is premised on an order having been correctly made, but facts having subsequently arisen which justify relieving a party from the operation of the order: Rockett v The Proprietors “The Sands” BUP 82  QCA 99, Appeal No 4355 of 2000, 20 March 2001; Woods v Sheriff of Queensland (1895) 6 QLJ 163 at 165.
- On 23 March 2001, in Appeal No 2071 of 2000, the Court of Appeal allowed the appeal against the orders made by Shepherdson J and struck out the statement of claim. In doing so it removed the formulation of issues which was the foundation for the order for disclosure and for the delivery of a defence. The plaintiff had the opportunity to replead, but chose not to do so. I asked for submissions on whether the order striking out the statement of claim (as opposed to the Court of Appeal’s reasons for judgment) could be a “fact” within rule 668(1)(a), and, if so, whether enforcement of the orders made by Douglas and White JJ should be stayed.
- Mr Martin submitted that the decision of the Court of Appeal could not be a fact within the rule, and relied on Rockett. As I have already said, the passages in the transcript of argument before the Court of Appeal on the hearing of Appeal No 2071 of 2000 where members of the Court were sceptical about the plaintiff’s ultimate prospects (on which Mr Stubberfield relied again in this context) were mere expressions of tentative opinions, ultimately of considerably less import than reasons for judgment, and certainly not facts. It is clear that reasons for judgment are not facts, but opinions: Rockett at para .
- In Rockett Mrs Rockett and her husband sued Mrs Anthony and The Proprietors “The Sands” BUP 82 (“the body corporate”) for defamation. They were successful. Both Mrs Anthony and the body corporate lodged appeals. The body corporate consented to the dismissal of its appeal before Mrs Anthony’s appeal was heard. Her appeal was successful. The body corporate then applied to have the judgment against it stayed, relying on r 668(1)(a). At first instance it was held that the decision of the Court of Appeal in Mrs Anthony’s appeal was a fact arising after the judgment against the body corporate, authorising the court to set aside or vary the judgment pursuant to rr 668(2) and (3)(b). The judge at first instance accordingly set aside the judgment against Mrs Rockett and her husband and instead gave judgment dismissing their claims. That decision was reversed on appeal.
- McPherson JA (with whom Williams JA and I agreed) doubted whether a decision of the Court of Appeal (as opposed to its reasons for judgment) could be a fact for the purpose of rule 668(1)(a). At paragraph  he said –
“It appears to be more in the nature of a judicial act having an operation and effect of its own.”
His Honour went on to express the view that, even assuming it could be, the judgment in question did not reveal anything that would entitle the body corporate to be relieved from the judgment against it. It was impossible to predict with any confidence that the same result would have been reached had the body corporate proceeded with its appeal. Further, the order made by consent dismissing the body corporate’s appeal was an insurmountable hurdle.
- That the Court of Appeal struck out the statement of claim in proceeding S 7852 of 1996 is a fact - something which has actually happened. Either the Court of Appeal’s act in making the order is itself a fact, or the operation and effect of that order is a fact. In any event, the foundation for orders for disclosure and the delivery of a defence has been removed. I consider that I do have power under rule 668(1)(a) to stay the enforcement of the costs orders made by Douglas and White JJ.
- Mr Martin submitted that I should not exercise that power in favour of the defendants because the effect of doing so would be to deprive the plaintiff of the benefits of the costs orders. He pointed out that it is often the case that a party who has obtained orders for costs in its favour in interlocutory proceedings ultimately loses, and that it does not thereby lose the benefit of the costs orders. It had been open to Douglas and White JJ to reserve the costs of the applications before them, but they must have been satisfied that it was proper to make the orders which were intended to have effect whichever side ultimately won.
- There is considerable force in Mr Martin’s submissions. However, it must be borne in mind that an order under r 668 would not be premised on the original orders having been wrongly made, but on some fact or facts having arisen after the orders were made justifying a stay. It seems to me that this case, while not unique, is sufficiently special to justify a stay of the costs orders of Douglas and White JJ, and I so order.
- Mr Stubberfield pressed me to stay the enforcement of the costs orders made by the Court of Appeal on 28 July 2000 and 22 December 2000, again pursuant to r 668. He referred me to Woods v Sheriff of Queensland (1895) 6 QLJ 163 at 165, where Griffith CJ said of a precursor of this rule –
“It follows that the application for relief from ... [the original decision or order] ... need not be made to the court or judge by whom the original order was made, but may be made to any judge who can exercise the jurisdiction of the court, although it would ordinarily be made to the same court or judge; and the relief may be granted by a judge in chambers (if it is a proper case for chambers) although the original order was made by the Full Court - whether on appeal or otherwise.”
- I doubt that a single judge could stay an order of the Court of Appeal pursuant to r 668, but I do not express a concluded opinion on this jurisdictional point in the absence of full argument on it. Suffice it to say that even if I had that power, I would not be prepared to exercise it in the present case. Any application to stay the orders of the Court of Appeal should be brought before that division of the Supreme Court.
- Because the defendants have succeeded in obtaining a considerable part of the relief sought in the application, they should have the costs of this application on the standard basis. Of course, because they were not legally represented, those costs will be limited to disbursements.
[*] On the first hearing day the application was amended to claim the costs in para (b) on the indemnity basis.
- Published Case Name:
Paradise Grove Pty Ltd v Stubberfield & Another
- Shortened Case Name:
Paradise Grove Pty Ltd v Stubberfield
- Reported Citation:
 QSC 3
08 Jan 2002
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