Oldmeadow v Trevorrow (No. 2)[2023] QSC 62

SUPREME COURT OF QUEENSLAND

1. [1]
   On 9 March 2023 the court made these orders:

3. 1.
   The application for leave to proceed under the Uniform Civil Procedure Rules 1999 (UCPR) rule 389(2) is refused;

3. 2.
   The application for an extension of time within which to comply with the order made by Callaghan J on 29 July 2022 is refused;

3. 3.
   Mr Trevorrow’s cross application to dismiss the proceeding for want of prosecution under UCPR rule 280 is allowed;

3. 4.
   Mr Oldmeadow’s application in proceeding number 11072/22 for an extension of the relevant limitation period under s 59(7) of the Guardianship and Administration Act 2000 (Qld) is refused.

3. 5.
   The parties be heard on costs.

2. [2]
   The reasons for those orders are at Oldmeadow v Trevorrow [2023] QSC 38.
3. [3]
   The applicant has filed and served submissions which submit that the appropriate costs orders are that the applicant pay the respondent’s costs of and incidental to:

   1. (a)
      Proceeding No. 13285/19, from 12 August 2022, on the standard basis; and
   2. (b)
      Proceeding No. 11072/22 on the standard basis.
4. [4]
   On the other hand, the respondent submits that it should have all of its costs on an indemnity basis.

A Complication

5. [5]
   It is necessary, at the outset, to identify a complication.  On 29 July 2022, Callaghan J made the following order:

The Applicant file and serve any application for leave to proceed pursuant to Rule 389(2) of the Uniform Civil Procedure Rules 1999 on or before 12 August 2022, failing which, these proceedings being struck out with the Applicant to pay the Respondent’s costs of and incidental to the proceeding on the indemnity basis.

6. [6]
   Thus, the guillotine order made by Callaghan J envisaged that, in the event that the foreshadowed application for leave to proceed was not filed and served on or before 12 August 2022, the respondent would be entitled to its costs of the proceeding, to that point, on an indemnity basis.
7. [7]
   The application for leave to proceed was filed within the date specified by the order of Callaghan J. However, it was served nearly two hours late.  Thus, the guillotine fell and application for leave to proceed, and the proceeding itself, was dismissed by operation of the order.
8. [8]
   The non-compliance with the order of Callaghan J was relatively minor and, if it were not for the substantive issues on leave to proceed, there may have been a reasonable case for extending the time for compliance with the guillotine order.  Instead, the application for leave to proceed was refused and the guillotine order was left in its place.
9. [9]
   Thus, the complication is that, because Callaghan J ordered that the applicant pay the respondent’s costs of the proceeding on an indemnity basis, the issue arises as to whether that order means that the costs of the proceeding have already been dealt with by the order made by Callaghan J.
10. [10]
    On this point, I agree with the applicant’s submissions to the effect that His Honour’s order deals with the costs of the proceeding up to and including 12 August 2022.  However, that order does not dispose of the costs of the four subsequent applications.  As the applicant points out, UCPR rule 693(1) expressly provides that the costs of a proceeding do not include the costs of an application in the proceeding, unless the court orders otherwise.

The Issue

11. [11]
    The question, then, is what should be done about:

    1. (a)
       the costs of the proceeding beyond 12 August 2022; and
    2. (b)
       the costs of the four applications.
12. [12]
    The costs of the proceeding beyond 12 August 2022 [i.e. (a) above] are likely to be quite insignificant – leave was required before the proceeding could continue. The substantive application was for leave to proceed.

Indemnity Costs

13. [13]
    The respondent’s submission is that this case fall within one of the categories in Colgate Palmolive Co v Cussons Pty Ltd.^[1]  The basis for that claim is as follows:

“The principal submission of the respondent is that the applicant has intentionally disregarded the Uniform Civil Procedure Rules as to the manner in which these proceedings have been conducted and in particular has intentionally ignored the requirements of rule 5: see paragraph [80] of the reasons.  In these circumstances there has been such misconduct as to entitle the respondent to an order for indemnity costs.”

14. [14]
    The respondent relies on a collection of conduct on the part of the applicant. Of course, the categories of conduct that qualify as sufficient to justify an exercise of the power to award indemnity costs are not closed. Conduct that qualifies as justifying an indemnity costs order may comprise a collection of conduct. At the core of the discretion to order indemnity costs is something more than simply a lack of merit. Often, the qualifying conduct will involve misconduct or an unreasonable stance.   
15. [15]
    Here, the respondent contends that the proceeding has been conducted in a manner that intentionally ignored the requirements of rule 5. The problem with the respondent’s submission that it is not clear on the evidence that there is an element of “intention” in the applicant’s conduct.  There is, of course, little doubt that in seeking 21 or 25 adjournments (to use that as an example) the applicant and his solicitors acted consciously.  However, it is far from clear that the applicant’s conduct was an intentional act, or a collection of intentional acts, designed to disregard, ignore or avoid the requirements of UCPR rule 5.  It is just as possible that the applicant was mistaken as to his obligations or even that he was entitled to adjourn the proceeding up to the time it was served.
16. [16]
    The respondent submits that the applicant’s solicitors must have been conscious of the fact that the court’s processes were not being complied with or were being abused. However, I am not satisfied the evidence goes that far.  Some relatively clear evidence would be needed before a court would conclude that there was a deliberate flouting of the rules.
17. [17]
    In my view this case does not come within the scope of the exceptional categories discussed in Colgate v Palmolive and the conduct of the applicant is not analogous to those categories of conduct.
18. [18]
    The respondent is entitled to costs on the general principle that costs should follow the event. However, for the reasons stated, the costs orders will be made on the standard basis.