Kashani-Malaki v Di Carlo (No 2)
[2012] QSC 261
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- Kashani-Malaki v Di Carlo (No 2)[2012] QSC 261
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Kashani-Malaki v Di Carlo (No 2)[2012] QSC 261
Kashani-Malaki v Di Carlo (No 2)[2012] QSC 261
SUPREME COURT OF QUEENSLAND
CITATION: | Kashani-Malaki v Di Carlo (No 2) [2012] QSC 261 |
PARTIES: | MORTEZA KASHANI-MALAKI AND SALVATORE DI CARLO |
FILE NO: | 8474 of 2009 |
DIVISION: | Trial Division |
PROCEEDING: | Application |
ORIGINATING COURT: | Supreme Court of Queensland |
DELIVERED ON: | 10 September 2012 |
DELIVERED AT: | Brisbane |
HEARING DATE: | On the papers |
JUDGE: | Daubney J |
ORDER: | The defendant pay the plaintiff’s standard costs of and incidental to the application (including the plaintiff’s costs of and incidental to the appearance before Atkinson J on 9 March 2012). |
CATCHWORDS: | PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – Where the applicant’s application was dismissed – whether there should be a departure from the general rule that costs follow the event |
| Public Trustee Act 1978 (Qld), s 95 Kashani-Malaki v Di Carlo [2012] QSC 139 |
SOLICITORS: | Robert Bax and Associates for the plaintiff Milner Lawyers for the defendant The Official Solicitor for the Public Trustee of Queensland for the Public Trustee of Queensland |
- When I delivered the principal judgment[1] on this application, I gave the parties leave to make submissions with respect to costs.
- The defendant had sought an order that the proceeding be stayed unless and until the Public Trustee of Queensland consented in writing to the plaintiff continuing with the proceeding. It was argued that, whilst there was no prohibition on the plaintiff commencing the proceeding, the subsequent imposition of a sentence of imprisonment on the plaintiff triggered the operation of Part 7 of the Public Trustee Act 1978, and that the ongoing prosecution of this proceeding was a matter required to be undertaken by the Public Trustee as part of his management of the plaintiff’s estate. For the reasons set out at length in the principal judgment, those arguments were rejected, and the application was dismissed.
- The solicitor for the Public Trustee has advised that the Public Trustee, who instructed the Solicitor-General to appear before me on the hearing of the application with a view to assisting the Court, had given instructions that he would not be seeking to recover his costs of the application.
- The plaintiff seeks his costs of and incidental to the application, on the usual basis that costs ought follow the event. The costs sought include the costs associated with an appearance before Atkinson J for a caseflow review. On that occasion, Atkinson J specifically reserved the costs of that appearance to the defendant’s then foreshadowed application concerning the requirement of consent from the Public Trustee.
- It was submitted for the defendant, however, that the costs ought be in the cause. The following matters were submitted to be relevant to the exercise of the costs discretion:
(a)The application arose from the incarceration of the plaintiff following a plea of guilty;
(b)The Public Trustee does not seek an order for costs in its favour;
(c)The determination of the matter has clarified an issue between the parties regarding the Public Trustee;
(d)The decision “helps to resolve the future conduct of the matter by providing guidance to the plaintiff (and other prisoners) as to when he will require the consent of the Public Trustee in regards to various steps in the litigation”;
(e)The conduct of the argument before the Court was by the defendant and the Public Trustee, and although the plaintiff was represented his involvement in propounding a position was minimal;
(f)The defendant presented a seriously arguable case;
(g)The application should be seen in the nature of an application for directions;
(h)The application was made in accordance with directions of Atkinson J as part of case management;
(i)The principal proceedings involve allegations by the plaintiff of breach of duty by the defendant in the conduct of the plaintiff’s defence of criminal charges in circumstances in which the plaintiff ultimately pleaded guilty. If the defendant is successful in defending those claims he should not be prejudiced by having to pay costs or not being able to recover his own costs of an application “reasonably brought in the proceedings and which will assist in the orderly conduct of the proceedings”.
- As set out in the principal judgment, the defendant propounded a particular interpretation of Part 7 of the Public Trustee Act 1978. In brief, it was contended for the defendant that:
(a)on a proper construction of s 95(1)(b), the plaintiff was precluded from continuing to maintain the proceedings; and
(b)the ongoing prosecution of the case by the plaintiff necessarily involved the alienation of property or the making of contracts, and to that extent the plaintiff was rendered incapable by s 95(1)(a).
- Both of those arguments were rejected, for the reasons stated at length in the principal judgment. The application was founded on those propositions. The defendant did not succeed in making good those propositions, and was unsuccessful in the application. The starting point should be that costs follow the event.
- Turning to the specific discretionary matters referred to in the defendant’s costs submissions, and dealing with them seriatim:
(a)The fact that the application arises from the incarceration of the plaintiff is irrelevant to the present costs consideration;
(b)The fact that the Public Trustee does not seek its costs is irrelevant to a consideration as to whether the plaintiff ought be entitled to his costs;
(c)The judgment has, of course, clarified an issue between the parties; that is generally what happens when a judgment is delivered;
(d)The fact that the judgment “helps to resolve the future conduct of the matter” is also a consequence of the nature of the judgment – the defendant’s application to stay the proceeding was dismissed;
(e)This submission unfairly characterises the involvement of counsel for the plaintiff in the hearing before me. It is true that much of the oral argument was conducted by the Solicitor-General, who appeared for the Public Trustee. Counsel for the plaintiff, however, filed comprehensive written submissions and appeared on the hearing;
(f)Parties regularly present seriously arguable cases in contested hearings. The “seriously arguable case” presented by the defendant on this occasion was unsuccessful;
(g)This was not an application for directions; it was a substantive interlocutory application seeking a stay of the proceeding;
(h)The fact that the application was brought in compliance with case management directions made by Atkinson J is in no way determinative of costs. Indeed, as already noted, Atkinson J specifically reserved the costs of the caseflow review to the present application;
(i)The nature of the principal proceedings was in no way determinative of the present application. The issues raised on the present application were discrete issues of statutory interpretation, on which the defendant’s arguments were unsuccessful.
- Accordingly, I consider that none of the matters raised on behalf of the defendant are sufficient to displace the usual consequence of costs following the event. It also seems appropriate that such a costs order include the costs of the caseflow review on 9 March 2012.
- Finally, I note that the final costs submission made on behalf of the defendant was as follows:
“In the event that an order for costs is made against the defendant in this matter the defendant seeks the leave of the Court to appeal that decision.”
- Some might regard that submission as a departure from the conventional approach of seeing a judge’s reasons for a decision before deciding whether an appeal is available or warranted. At the very least, the submission is inappropriate, and I propose ignoring it.
- It will be ordered that the defendant pay the plaintiff’s standard costs of and incidental to the application (including the plaintiff’s costs of and incidental to the appearance before Atkinson J on 9 March 2012).
Footnotes
[1] [2012] QSC 139.