Gramotnev v Queensland University of Technology (No 4)
[2013] QSC 249
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Appeal Determined - Special Leave Refused (HCA)
- Gramotnev v Queensland University of Technology (No 4)[2013] QSC 249
- Add to List
Gramotnev v Queensland University of Technology (No 4)[2013] QSC 249
Gramotnev v Queensland University of Technology (No 4)[2013] QSC 249
SUPREME COURT OF QUEENSLAND
CITATION: | Gramotnev v Queensland University of Technology (No 4) [2013] QSC 249 |
PARTIES: | DMITRI GRAMOTNEV Plaintiff And QUEENSLAND UNIVERSITY OF TECHNOLOGY Defendant |
FILE NO/S: | S6286/2010 |
DIVISION: | Trial Division |
PROCEEDING: | Trial |
ORIGINATING COURT: | Brisbane |
DELIVERED ON: | 16 September 2013 |
DELIVERED AT: | Rockhampton |
HEARING DATE: | On the Papers |
JUDGE: | McMeekin J |
ORDER: |
|
CATCHWORDS: | CONTRACT – BREACH OF CONTRACT – COSTS – whether the plaintiff be permitted an extension of time to make submissions as to costs CONTRACT – BREACH OF CONTRACT – COSTS – costs determination Uniform Civil Procedure Rules 1999 Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 Cosgrove v Johns [2000] QCA 157 Di Carlo v Dubois [2002] QCA 225 Gramotnev v Queensland University of Technology (No 3) [2013] QSC 210 Gramotnev v Queensland University of Technology (No 2) [2013] QSC 177 Gramotnev v Queensland University of Technology [2013] QSC 158 John S Hayes & Associates Pty Ltd v Kimberly-Clark Australia Pty Ltd (1994) 52 FCR 201 Oshlack v Richmond River Council (1998) 193 CLR 72 Todrell Pty Ltd v Finch & Ors [2007] QSC 386 |
COUNSEL: | Dr D Gramotnev in person D Kelly SC and D de Jersey for the Defendant |
SOLICITORS: | Minter Ellison Lawyers for the Defendant |
- McMeekin J: The issue for resolution concerns the appropriate costs orders that should be made.
- The proceedings involved the determination of separate issues regarding the terms of an employment contract between the plaintiff and the defendant. I found in the defendant’s favour[1] and made orders dismissing the plaintiff’s proceedings on 16 July 2013.[2] I directed the parties to make submissions on the costs orders that should follow. I have received submissions from the defendant but not the plaintiff.
- The plaintiff has sought extensions on three occasions to the timetable that I originally laid down. Twice I have extended time. I indicated on the last occasion that there would be no further extension.[3] Again an extension was sought. There is nothing new in the matters advanced. I propose to proceed as I have earlier indicated that I would. I will do so based on the submissions that I have received to date from the parties, which in the plaintiff’s case are contained in the various emails sent to my associate in which he seeks to delay making his submissions.
Costs Assessment
- In his emails the plaintiff has indicated that he opposes any order to pay the defendant’s costs. I will return to what I understand to be his position later.
- The defendant seeks an order that the plaintiff pay the defendant’s costs of the proceeding, other than the defendant’s costs of and incidental to the application for the determination of the separate questions heard by me on 26 and 27 March 2013, assessed on the indemnity basis.
- The reason for the limitation on the order is that it was a condition of the setting down of the separate questions that the defendant not pursue its costs of that application.
- The reason for seeking indemnity costs is that on 18 November 2011 the defendant made an offer to settle the proceedings by the payment to the plaintiff of $100,000.
- The defendant submits that the offer satisfies the requirements of r.361 of the Uniform Civil Procedure Rules 1999 (UCPR). The rule provides:
361 Costs if offer to settle by defendant
(1)This rule applies if—
(a)the defendant makes an offer to settle that is not accepted by the plaintiff and the plaintiff obtains a judgment that is not more favourable to the plaintiff than the offer to settle; and
(b)the court is satisfied that the defendant was at all material times willing and able to carry out what was proposed in the offer.
(2)Unless a party shows another order for costs is appropriate in the circumstances, the court must—
(a)order the defendant to pay the plaintiff’s costs, calculated on the standard basis, up to and including the day of service of the offer to settle; and
(b)order the plaintiff to pay the defendant’s costs, calculated on the standard basis, after the day of service of the offer to settle.
…….
- There is no doubt that the offer of $100,000 was a better result for the plaintiff than the dismissal of his proceedings. The condition in paragraph (1)(a) is satisfied. There is no reason to think that the University would not be able to pay the monies as it offered to do. The condition in paragraph (1)(b) is satisfied.
- Given that success in the proceedings would normally result in a costs order in the defendant’s favour on the standard basis (see r 681 UCPR) then, subject to the matters raised by the plaintiff, it seems appropriate that an order set out in paragraph (2)(a) of the rule not be made – that is that the defendant should not be ordered to pay the losing plaintiff’s costs. Obviously the rule contemplates that the plaintiff will have some success in the proceedings. That has not happened here.
- The defendant seeks to go further and asks that its costs be paid on the indemnity basis. Plainly the onus is on the defendant to persuade me that is the appropriate order.
- In support of its submission the defendant cites Oshlack v Richmond River Council[4] and Colgate-Palmolive Co v Cussons Pty Ltd[5] and argued
“…that it was imprudent for the plaintiff to nonetheless persist with his claim, especially where aspects of the argument made in support of it were found to be “simply wrong”[6] and aspects of the plaintiff s claims for damages were for personal injury which were made despite his admitted failure to comply with the pre litigation requirements of the Workers Compensation & Rehabilitation Act 2003 (Qld)[7].”
- The defendant also argued that the plaintiff “unreasonably resisted the defendant's application to have separate questions decided in the proceeding. The application for determination of separate questions was appropriate and it was productive of savings in cost and delay.”
- I observe that the arguments involving the pre litigation requirements of the Workers Compensation & Rehabilitation Act 2003 (Qld) assumed a very small part of the overall debate.
- As the defendant’s submissions recognise, the court ought not usually make an order for the payment of costs on some basis other than the standard basis unless the circumstances of the case warrant the court in departing from the usual course. The approach that r.361 suggests is the norm reinforces that.
- The cases[8] show that the tests for such departure include “as and when the justice of the case might so require” and “some special or unusual feature in the case to justify the court in departing from the ordinary practice”. In Todrell Pty Ltd v Finch & Ors[9] Chesterman J (as his Honour then was) identified a test which he had applied as being “whether there was something irresponsible about the conduct of the losing party which exposed its opponent to costs which should, in fairness, be ordered on the indemnity basis.”
- The defendant’s submission is that it was imprudent of the plaintiff not to accept the substantial sum offered in the context of the matters that I have mentioned.
- In my view the various matters mentioned are of little significance overall. They do not demonstrate irresponsibility in the pursuit of the litigation nor constitute a special or unusual feature justifying departure from the usual rule.
- While I concluded that several elements of the plaintiff’s case were “simply wrong”, this is not a reflection on the entire matter, and should not be construed as a wilful disregard of known facts. As I remarked some of Dr Gramotnev’s contentions were plainly arguable and in my judgment did not lack force. It is not irrelevant that the University has, to a degree, brought the litigation on itself by its failure to more clearly set out the precise terms of the employment contract, it having the power to do so.[10]
- Nor do I consider that it was in some sense irresponsible for the plaintiff to initially resist the making of the order for the determination of the separate question. There are often legitimate tactical and other considerations to be weighed up in deciding the appropriate attitude, not least that the determination of separate issues might end up being a waste of costs, as has occurred in cases in the past.
- Nonetheless the making of a substantial offer well before the hearing where the plaintiff has failed entirely is a significant matter and ordinarily justifies departure from the usual rule. A defendant cannot protect itself on costs in any other way. Generally it is obviously imprudent of a plaintiff not to accept an offer in these circumstances.
- The issue then is whether any other aspect of the case suggests that the plaintiff was not imprudent in refusing the offer.
- From the email correspondence of the plaintiff, I will assume that the plaintiff opposes the costs orders sought to be made against him. As I have not received formal submissions from the plaintiff, I rely on the reasons provided by the plaintiff in his email to the Court of 14 August. It outlines four main arguments against such an order. I briefly addressed these matters when I last granted the plaintiff an extension.[11] I will now consider these submissions in more detail.
- The four principal submissions were:
(a)The significant public interest of the proceeding justifies an order that the plaintiff should be exempt from paying the defendant's costs, or at least that the liability to pay the costs should be capped at $5,000 (with a reference to Bare v Small [2013] VSCA 204);
(b) The significant unfairness of any potential order that the plaintiff should pay the defendant's costs in circumstances where the decision dismissing the proceeding was made on the basis of a separate trial and without any consideration of the substance of the matter, which leaves the significant possibility that the victim of the abuse (the plaintiff) would be ordered to pay costs of the guilty party (the defendant) who had wilfully committed abuse over a number of years;
(c) The defendant “repeatedly but groundlessly and shamelessly alleged that the plaintiff extorted money from the defendant” - an allegation that has “made it completely impossible for [the plaintiff] to discuss, negotiate or accept any monetary settlement with the defendant (including the defendant's offer of 18 November 2011)”;
(d) An order to pay the defendant's costs would cause “major prejudice” and be an “impediment” to the plaintiff to prepare and conduct the appeal from my decision “and seek justice before the law”.
- As to paragraph (a) - there is no public interest in the proceedings at all. The plaintiff seeks substantial damages – in the order of $2,500,000 - for an alleged breach of his employment contract. No one - other than the parties - has any interest in the outcome.
- Bare v Small involved very different considerations to those here. The applicant there sought to have an investigation, by a body independent of the police, into his allegations of having suffered a brutal bashing at the hands of police officers. He sought no damages. The application concerned his prospective costs of an appeal. There were in place statutory provisions which the Victorian Court of Appeal held entitled the court to make what was termed a “protective costs order”.
- Here the costs in issue are not prospective and do not relate to an appeal. The statutory regime is different although this Court plainly has wide powers in relation to costs – see ss 13-15 of the Civil Proceedings Act 2011 and Chapter 17A of the UCPR.
- Further English authority suggests that such orders were appropriate where five conditions were satisfied. None of those conditions are satisfied here. The conditions are:
(1)the issues raised are of general importance;
(2)the public interest requires that those issues should be resolved;
(3)the applicant has no private interest in the case;
(4)having regard to the financial resources of the applicant and the respondent, and to the amount of costs that are likely to be involved, it is fair and just to make the order;
(5)if the order is not made, the applicant will probably discontinue the proceeding and will be acting reasonably in doing so.
- There is no reason I can see to cap the costs incurred.
- On my findings the matters alleged in paragraph (b) above are factually wrong, and there is not the slightest prospect of the allegations being established, at least in the context of this contractual dispute.
- As to the allegations in paragraph (c) - the plaintiff’s decision not to respond to the offer made was entirely a matter for him. It is irrelevant that the plaintiff might perceive that the defendant had at some time sought to extort money from him. While there was no evidence of any such thing, even assuming that any such conduct occurred that has nothing to do with the matters the subject of the litigation. It did not mean that the plaintiff could not accept the offer.
- As to the argument in paragraph (d) I do not see how the making of an order for costs will have any impact on the plaintiff’s capacity to prepare and conduct his appeal.
- Assuming that the plaintiff is impecunious that is not a relevant factor in determining the costs issue. Impecunious litigants are not immune to costs orders. If that were so then it would be an invitation to those minded to pursue blameless parties through the courts and with great financial disadvantage to the defendants. If the plaintiff is bankrupted his trustee in bankruptcy will no doubt consider the merits of any appeal and pursue it vigorously if he or she considers the prospects warrant that course.
- The plaintiff has not shown that it was prudent to reject the offer of compromise.
- In my view the justice of the case requires that the costs incurred by the defendant since the expiration of the offer be ordered to be paid by the plaintiff on the indemnity basis.
- As a postscript the plaintiff finally forwarded submissions on a date of his choosing. I have not considered them, the plaintiff being in breach of an express direction of the court and the defendant being entitled to rely on my previous order that I would not grant any further extension.
Footnotes
[1] Gramotnev v Queensland University of Technology [2013] QSC 158
[2] Gramotnev v Queensland University of Technology (No 2) [2013] QSC 177
[3] Gramotnev v Queensland University of Technology (No 3) [2013] QSC 210
[4] (1998) 193 CLR 72 at 67
[5] (1993) 46 FCR 225
[6] Citing my reasons in Gramotnev v Queensland University of Technology [2013] QSC l 58 at [72]
[7] Citing my reasons in Gramotnev v Queensland University of Technology [2013] QSC l 58 at [249]
[8] For example see Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; John S Hayes & Associates Pty Ltd v Kimberly-Clark Australia Pty Ltd (1994) 52 FCR 201; Cosgrove v Johns [2000] QCA 157; and Di Carlo v Dubois [2002] QCA 225.
[9] [2007] QSC 386
[10] See my comment in Gramotnev v Queensland University of Technology [2013] QSC l 58 at [25]
[11] Gramotnev v Queensland University of Technology (No 3) [2013] QSC 210 at [9]