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  4. Pine Rivers, Caboolture & Redcliffe Group Training Scheme Inc v Group Training Association Queensland & Northern Territory Inc - [2013] QSC 87

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Pine Rivers, Caboolture & Redcliffe Group Training Scheme Inc v Group Training Association Queensland & Northern Territory Inc[2013] QSC 87

Pine Rivers, Caboolture & Redcliffe Group Training Scheme Inc v Group Training Association Queensland & Northern Territory Inc[2013] QSC 87

 

SUPREME COURT OF QUEENSLAND 

 

CITATION:

Pine Rivers, Caboolture & Redcliffe Group Training Scheme Inc & Ors v Group Training Assoc Qld & Northern Territory Inc [2013] QSC 87

PARTIES:

PINE RIVERS, CABOOLTURE AND REDCLIFFE GROUP TRAINING SCHEME INCORPORATED (T/AS EAST COAST APPRENTICESHIPS)
(First Applicant)

GOLDEN WEST GROUP TRAINING SCHEME INCORPORATED
(Second Applicant) 

ALAN SPARKS
(Third Applicant) 

ROBERT FULTON
(Fourth Applicant)

v

GROUP TRAINING ASSOCIATION QUEENSLAND AND NORTHERN TERRITORY INCORPORATED    (Respondent) 

FILE NO/S:

BS No. 5363 of 2012

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

5 April 2013

DELIVERED AT:

Brisbane

HEARING DATE:

Written submissions received on 7 March 2013 and 14 March 2013

JUDGE:

Ann Lyons J

ORDER:

  1. That the applicants pay the respondent’s costs on the standard basis

CATCHWORDS:

PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – whether the discretion to order costs should be exercised – where the post-proceeding conduct of the parties was irrelevant to the question of costs – where the respondent’s submission that costs be ordered on an indemnity basis was refused as there were no exceptional circumstances – where costs were ordered on the standard basis

Associations Incorporation Act 1981 (Qld), s 72

Judicial Review Act 1991 (Qld), s 49(2)

Uniform Civil Procedure Rules 1999 (Qld), rr 681(1), 703

Colgate Palmolive Company & Anor v Cussons Pty Ltd (1994) 46 FCR 225

Grice v Queensland [2005] QCA 298

Hughes v Western Australian Cricket Association Inc 66 ALR 541

Oshlack v Richmond River Council 152 ALR 83

COUNSEL:

C Coulsen for the Applicants                                                   V Brennan for the Respondent 

SOLICITORS:

Hall Payne Lawyers for the Applicants                   McCullough Robertson Lawyers for the Respondents

 

 

ANN LYONS J:

  1. On 28 February 2013, I dismissed an application filed on 15 June 2012 (“the application”) by the applicants seeking orders for; 
  1. A direction pursuant to s 72 of the Associations Incorporation Act 1981 (Qld) that the Management Committee perform and observe the rules of the Group Training Association Queensland and Northern Territory Incorporated by providing a number of documents listed as documents A to U in the application;
  1. A direction pursuant to s 72(1)(b) of the Act that the resolution of 10 November 2011 referred to in paragraph 34 of the affidavit of Alan Sparks renewing the Chief Executive Officer’s contract is void and of no effect due to the failure of the Respondent to provide members of the Management Committee with all the relevant documents; or
  1. In the alternative to Order 2, that the resolution of 10 November 2011 renewing the contract is a resolution passed other than in accordance with the Act and the Articles of the Association.
  1. The issue of costs remains. Written submissions on costs were provided by counsel for the applicants on 7 March 2013 and by counsel for the respondent on 14 March 2013.

Applicants’ submissions as to costs

  1. The primary contention of the applicants is that there should be no order as to costs due to the respondent’s conduct after the hearing and before judgment. In particular, the applicants refer to an attempt by the respondent to suspend and terminate the memberships of the first and second applicants in late November 2012 and the purported removal of the third and fourth applicants from the respondent’s Management Committee by 12 December 2012. The applicants argue that this course of conduct, which occurred prior to the final determination of the application, was pursued even though the respondent had never alleged that the applicants were motivated by improper purpose or bad faith in bringing the application.
  1. In my view, the post-proceeding conduct of parties is generally irrelevant to the question of costs and I agree with the submission of the respondent in this respect. Furthermore, the applicants have not provided any authority to support the relevance of the post-proceeding conduct relied upon. Therefore, I am not satisfied that the Court’s discretion to make a costs order should not be exercised based on the parties’ post hearing conduct.
  1. The applicants also argue that there are other factors which support the finding that no order as to costs should be made. The applicants refer to the respondent’s conduct during attempts at mediation. It is argued that although the respondent offered to mediate the dispute, the offers did not provide for the inspection by the applicants of the documents in contention and thus prevented the applicants from being able to fully deal with the scope of the dispute. The applicants also argue that the respondent refused a reasonable proposal by the applicants on 17 August 2012 to confine the inspection of the relevant documents to a controlled environment such as the offices of the respondent’s solicitors.
  1. In relation to their own conduct, the applicants argue that they did not act unreasonably in bringing the application. The applicants rely on the fact that before filing the application, they, and in particular the third applicant, had exhausted all reasonable avenues to obtain the documents sought from the respondent. This included lodging a Freedom of Information request on 27 October 2011, making written requests for the documents to the Secretary of the respondent and members of the Management Committee on 27 October 2011, 10 November 2011, 10 December 2011, 14 February 2012 and 5 April 2012 and raising the matter at a Management Committee meeting of the respondent on 14 February 2012. The applicants also argue that they continued to pursue negotiations with the respondent to obtain the relevant documents and resolve the dispute.
  1. The applicants further argue that because the respondent is an incorporated association with the purpose of managing and allocating grant monies for the public benefit, in exercising its discretion as to costs, the Court should consider factors similar to those identified in s 49(2) of the Judicial Review Act 1991 (Qld).  
  1. I note the respondent’s arguments that the applicants did not in fact engage in any serious negotiations as the applicants refused to have an independent audit conducted[1] and made it a pre-condition to mediation that most of the documents in contention be actually provided for inspection.[2]
  1. It is also clear that the present application was not an application for judicial review and I do not consider that the principles are analogous to the circumstances of this case.
  1. In my view, after considering all the circumstances, the applicants have failed to point towards any relevant factors sufficient to warrant a finding that the Court should not make a costs order in this case.
  1. As such, I now turn to the issue of the type of costs order that should be made. The applicants have submitted that, in the event that a costs order is deemed warranted, the usual rule should be followed, namely that costs be awarded on the standard basis.

Respondent’s submissions as to costs

  1. The respondent, however, seeks indemnity costs pursuant to r 703 of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”).  It is well established that, as a general rule, costs should follow the event and be assessed on the standard basis.[3]  Before ordering costs on an indemnity basis, the court requires some evidence of exceptional circumstances. In Grice v Queensland [2005] QCA 298, McMurdo P stated:

“…a court may order costs to be assessed on an indemnity basis. This would ordinarily be done only when there are circumstances warranting a departure from the usual order assessing costs on the standard basis. Before ordering costs on an indemnity basis, a court requires some evidence of unusual circumstances or unreasonable conduct: Di Carlo v Dubois & Ors.”[4]

  1. Although the respondent concedes that there is no unusual feature of this case which would displace the general rule as to costs, it relies on the authority of Colgate Palmolive Company & Anor v Cussons Pty Ltd (1994) 46 FCR 225, 223 to argue that costs should be awarded on an indemnity basis as the proceeding was misconceived by the applicants and pursued in wilful disregard of clearly established law. 
  1. More specifically, the respondent refers to the applicants’ failure to clearly identify the basis for bringing the application, that is, the specific rules of the respondent Association, sections of the Associations Incorporation Act 1981 (Qld), fiduciary duties or other rights or obligations being relied upon.  The respondent also submits that the applicants chose an inappropriate forum to air the dispute whilst refusing to engage in the respondent’s internal dispute resolution process, delivered much of their material late, including the notification to the respondent that they were abandoning one of the orders sought in the application and sought inappropriate means of relief such as a declaration as to alleged procedural irregularity which would have no effect on the appointment of the executive officer and the production of documents the sheer volume of which was oppressive.
  1. In further support of its proposition, the respondent submits that the intent of s 73(2) Associations Incorporation Act 1981 (Qld) is to afford the greatest protection to associations against the costs of groundless proceedings, that the respondent Association did attempt to provide certain documents to the applicants informally and clearly established its position early on in respect of the balance of the documents and that the respondent expects to make a loss due to the legal costs incurred in the current proceeding.
  1. However, overall, I am not satisfied that any exceptional circumstances are present in this case which would justify an order for indemnity costs to be made. In fact, as I have noted, the respondent concedes that, prima facie, the case does not involve any unusual feature which would displace the general rule.  The circumstances to which the respondent has then referred, in support of its submission, are not sufficiently unusual or unreasonable so as to warrant indemnity costs.  In my view, therefore, costs should clearly follow the event and the applicants should pay the respondent’s costs on the standard basis.

ORDER

  1. That the applicants pay the respondent’s costs on the standard basis.

Footnotes

[1] First Affidavit of David Mitchell at [88] – [93] and Affidavit of Mr Stokes dated 28 February 2013, letters dated 9 August and 17 August.

[2] Affidavit of Mr Stokes dated 28 February 2013.

[3] Rule 681(1) Uniform Civil Procedure Rules 1999 (Qld); Hughes v Western Australian Cricket Association Inc 66 ALR 541 per Toohey J; Oshlack v Richmond River Council 152 ALR 83 at [67].

[4] Grice v Queensland [2005] QCA 298 per McMurdo P at [6].

Close

Editorial Notes

  • Published Case Name:

    Pine Rivers, Caboolture & Redcliffe Group Training Scheme Inc & Ors v Group Training Assoc Qld & Northern Territory Inc

  • Shortened Case Name:

    Pine Rivers, Caboolture & Redcliffe Group Training Scheme Inc v Group Training Association Queensland & Northern Territory Inc

  • MNC:

    [2013] QSC 87

  • Court:

    QSC

  • Judge(s):

    A Lyons J

  • Date:

    05 Apr 2013

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2013] QSC 3128 Feb 2013Application for a direction pursuant to s 72 of the Associations Incorporation Act 1981 that the Management Committee perform and observe the rules of the Group Training Association Queensland and Northern Territory Incorporated by providing a number of documents to applicants. Application dismissed: Ann Lyons J.
Primary Judgment[2013] QSC 8705 Apr 2013Costs orders: Ann Lyons J.
Appeal Determined (QCA)[2013] QCA 358 [2015] 1 Qd R 54203 Dec 2013Appeal allowed with costs. Set aside the orders made on 28 February 2013 and 5 April 2013 and instead order that documents be produced: McMurdo P, Fraser JA, Atkinson J.

Appeal Status

Appeal Determined (QCA)

Cases Cited

Case NameFull CitationFrequency
Colgate Palmolive Company & Anor v Cussons Pty Ltd (1994) 46 FCR 225
2 citations
Jump To
Cite 1 - (1994) 46 FCR 225
Cite 2 - (1994) 46 FCR 225
Grice v State of Queensland [2005] QCA 298
3 citations
Jump To
Cite 1 - [2005] QCA 298
Cite 2 - [2005] QCA 298
Cite 3 - [2005] QCA 298
Hughes v Western Australian Cricket Association Inc (1986) 66 ALR 541
2 citations
Jump To
Cite 1 - (1986) 66 ALR 541
Cite 2 - (1986) 66 ALR 541
Oshlack v Richmond River Council (1998) 152 ALR 83
2 citations
Jump To
Cite 1 - (1998) 152 ALR 83
Cite 2 - (1998) 152 ALR 83

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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