Abood v State of Queensland[2024] QSC 257

SUPREME COURT OF QUEENSLAND

1. [1]
   On 9 October 2024 I struck out the statement of claim filed by the plaintiff, Mr Abood.^[1] Two issues remain: whether the proceeding should be struck out, and the issue of costs.

Striking Out the Proceeding

2. [2]
   In light of the circumstances, Mr Abood does not appear to object to the striking out of the whole proceeding:^[2]

…I would like to seek for the entire pleading to be struck out, due to the clear and demonstrated flaws and deficiencies in the law which do not recognise any cause of action or duty of care owed by the QPS or the AFP. It seems unlikely that this case would be able to proceed, even with legal representation, as the law does not recognise that there is any duty for the QPS or AFP to have prevented the abduction of my daughter from occurring, despite the clear and disclosed confession from Ms Kauffmann that this outcome was about to occur. 

3. [3]
   However, later in his submissions, Mr Abood suggests that the proceedings should remain alive whilst there are further attempts at a statement of claim. However, there is no basis for keeping alive proceedings which have been determined and where there is no application to replead or to amend or even a proposed fresh pleading. And, as Mr Abood seems to concede, his case is beyond any recognised legal cause of action.

Costs – The Principles

4. [4]
   Rule 681 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) sets out the general rule about costs:

1. (1)
   Costs of a proceeding, including an application in a proceeding, are in the discretion of the court but follow the event, unless the court orders otherwise.

1. (2)
   Subrule (1) applies unless these rules provide otherwise.

5. [5]
   As counsel for the Commonwealth pointed out, costs are not awarded to punish an unsuccessful party; the primary purpose of an award of costs is to indemnify the successful party.^[3] And so the principle is that, if the litigation had not been brought or defended by the unsuccessful party, the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation.
6. [6]
   In some cases, the costs of issues may be split,^[4] although there is a pragmatic preference for costs orders that order a portion of costs to one or other of the parties.^[5]
7. [7]
   The existence of the broad discretion ‘to order otherwise’ means that there may be circumstances where a successful party can be deprived of its costs. That may occur where the defendant brought about the litigation, or where the defendant has done something connected with the institution or the conduct of the litigation calculated to occasion unnecessary litigation and expense, or where the defendant has done some wrongful act in the course of the transaction of which the plaintiff complains.^[6]
8. [8]
   However, conduct wholly unconnected with the proceeding is not relevant to the costs’ discretion,^[7] nor are circumstances that do not emerge from the court record or from the evidence at trial.^[8] As Einstein J explained in Pioneer Park Pty Ltd (in liq) v Australia and New Zealand Banking Group Ltd:^[9]

The principled approach to dealing with costs requires the Court to focus upon and only upon, the conduct of the actual proceedings which have taken place. Conduct anterior to the commencement of the proceedings may be remediable if that conduct exposes a cause of action, in which event success on that cause of action is in general the mode and the only mode, by which the innocent party receives redress from the Court. [emphasis in the original]

9. [9]
   Frequently the courts resist the temptation to deprive a successful party of its costs. For example, in Russo v Resource Developments International Pty Ltd (No 2)^[10] Young CJ made a finding that he could not believe the evidence of the successful defendant, a solicitor. His Honour concluded that the successful defendant had fabricated a document which was deployed in evidence and maintained that the document was not fabricated. Nevertheless, His Honour observed:^[11]

…the Court looks for something which is close to the cause of action sued upon or the transaction flowing from which the cause of action arises. General amoral behaviour of a party is no reason to deprive that party of costs. Indeed, even if the facts on which the cause of action are based show that the defendant is not “a decent chap”, this again is no reason to deprive a successful defendant of his costs. The conduct must be intimately connected with the reason why the litigation was brought or lasted as long as it did or as one might colloquially say “in that ball park” …

I am not at all happy that a solicitor of this Court would fabricate a document in the sense of dating it a date it could not bear, and then persisting with evidence that it must have been prepared on the date it bore. Clearly, one document could not have been prepared on the date it carried. This conduct was exacerbated by the continued assertion of the document's validity and also, to a lesser extent, by the continued assertion that the solicitor and Mr Rafidi had independently prepared identical affidavits.

However, it does seem to me that, bearing in mind the general guidelines outlined in the cases which I have digested, the conduct is too collateral to the cause of action between the plaintiff and the fifth defendant.

Accordingly, in my view, the ordinary order must follow and the plaintiff must pay the fifth defendant's costs.

10. [10]
    Similarly, in B v J^[12] the trial judge deprived a solicitor of some of his costs of the client’s unsuccessful application to set aside the client’s costs agreement with his solicitor. The solicitor was deprived of some of the costs because of the solicitor's involvement in the conspiracy to mislead the court during the period in which he acted for the client in the property proceedings. The Full Court of the Family Court overturned the costs order concluding that:^[13]

…that the solicitor's involvement in the conspiracy during the period in which he acted for the client in her property settlement proceedings was too remote from the substantive issues in the proceedings to set aside the costs agreement to be relevant to the issue of the costs of those proceedings.

11. [11]
    The traditional exceptions to the usual order as to costs focus on the conduct of the successful party which disentitles it to the beneficial exercise of the discretion.^[14] And so in Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd Devlin J formulated the principle in this way:^[15]

No doubt, the ordinary rule is that, where a plaintiff has been successful, he ought not to be deprived of his costs, or, at any rate, made to pay the costs of the other side, unless he has been guilty of some sort of misconduct.

“Misconduct” in this context means misconduct relating to the litigation, or the circumstances leading up to the litigation. Thus, the court may properly depart from the usual order as to costs when the successful party by its lax conduct effectively invites the litigation; unnecessarily protracts the proceedings; succeeds on a point not argued before a lower court; prosecutes the matter solely for the purpose of increasing the costs recoverable; or obtains relief which the unsuccessful party had already offered in settlement of the dispute.

12. [12]
    In some special cases, depending on the particular legislation, a successful party may be deprived of its costs where:^[16]

    1. the litigation is brought for the public interest;
    2. the case is arguable; and
    3. the case resolved significant issues about the interpretation and future administration of provisions relating to the protection of endangered fauna and the ambit and future administration of the development consent, all of which had implications for the council, the developer and the public.
13. [13]
    The authorities discussed above illustrate the strength of the usual rule and the rationale that a costs order is compensatory in the sense that costs are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings.^[17] No doubt also the courts confine disqualifying conduct to the conduct connected to the proceeding because of the dangers in the court drawing conclusions beyond the dispute before the court.

Costs of the State

14. [14]
    The State seeks standard costs, not indemnity costs.^[18]
15. [15]
    The State points out that there have been four attempts to plead a case against the State. After each attempt the State was put to cost and expense responding to each version. Further, by reason of r 692(2) of the UCPR, Mr Abood is liable to pay the costs thrown away by each amendment in the absence of an order to the contrary.^[19]
16. [16]
    Further, the State submits that there is no basis for the court to depart from the usual rule in this case. I accept that submission.^[20]
17. [17]
    One question which the court asked the State to consider was whether the State’s conduct in the criminal proceeding brought against Mr Abood was a reason to deprive the State of its costs in this proceeding. In short, the State prosecuted domestic violence criminal proceedings against Mr Abood for approximately two years. It did that knowing that Ms Kauffmann was out of the country, had not signed her witness statement, and had signed a withdrawal of her complaint. Just why the State continued to prosecute the criminal proceeding in those circumstances is difficult to understand. Indeed, one would think that the court ought to have been told of the circumstances at the earliest opportunity.
18. [18]
    Nevertheless, to borrow the words of Einstein J in Pioneer Park Pty Ltd (in liq) v Australia and New Zealand Banking Group Ltd,^[21] the principled approach to dealing with costs requires the court to focus upon and only upon, the conduct of the actual proceedings which have taken place. This court has considered only Mr Abood’s present claim. The conduct of the criminal prosecution in the Magistrates Court is conduct wholly unconnected with this proceeding and is therefore not relevant to the costs’ discretion.   

Costs of the Commonwealth

19. [19]
    On 4 June 2024 the Commonwealth by its solicitors made a ‘Calderbank’ offer to settle the proceedings. The offer was in these terms:

I have received instructions to make an offer to settle the whole of the claim Mr Abood has made against the Commonwealth of Australia (Australian Federal Police).

The Commonwealth of Australia will consent to your client discontinuing the proceedings against it on the basis the parties bear the own costs of and incidental to the proceedings to date.

It is a condition of acceptance that your client sign a Release, Discharge and lndemnity which documents his agreement to bring no further proceedings against the Commonwealth of Australia arising from the same factual matrix.

This offer to settle is open for acceptance for 14 days from the date of this letter, that is, until 4pm on 18 June 2024, following which it will expire.

The Commonwealth of Australia will rely upon this letter pursuant to the principles in Calderbank v Calderbank should it be necessary to do so in order to resolve matters relating to costs.

20. [20]
    That offer was made in circumstances where, for a brief time, Mr Abood was represented by solicitors. The offer expired but was re-opened on 31 July 2024 and was able to be accepted up to 15 August 2024. The re-opened offer was sent to Mr Abood direct because, by that time he was back to acting for himself. That offer attached the Commonwealth’s outline of argument filed in the strike-out application.
21. [21]
    The offers made by the Commonwealth were not accepted by Mr Abood.
22. [22]
    Although Calderbank offers to settle were made, in its written submissions the Commonwealth only sought the ‘usual order’ as to costs for the application and as to the costs of the proceeding. In its written submissions the Commonwealth explicitly sought costs on the standard basis and did not seek indemnity costs.^[22] I will return to that issue in a moment.
23. [23]
    The Commonwealth submits that it is entitled to costs. It contends that:

    1. the Commonwealth has not engaged in any disentitling conduct that would warrant a departure from the usual order as to costs;
    2. the Commonwealth has, from the outset, provided a detailed explanation to Mr Abood as to the extensive concerns it held regarding the legal deficiencies in the Plaintiff's pleaded case;
    3. the Commonwealth has given Mr Abood every opportunity to re-plead his case, and the most recent statement of claim was Mr Abood’s fourth attempt to do so, albeit unsuccessful;
    4. at all times complied with orders from the Court, and conducted itself in accordance with r 5 of the UCPR; and
    5. The Commonwealth has, since the third amended pleading, made genuine offers to settle the proceedings on the basis Mr Abood discontinue the proceeding as against the Commonwealth with each party bearing their own costs to date, and did so when Mr Abood had access to legal advice about the merits of the offer.
24. [24]
    I accept those submissions, and I accept that it is appropriate to make the usual order that costs follow the event – on the standard basis.

A Further Issue

25. [25]
    There is a further issue. As I have explained, the Commonwealth expressly sought costs on the standard basis. That was the submission made in their written submissions dated 15 October 2024 (filed on 15 October 2024). Mr Abood filed his submissions on costs, and a supporting affidavit, on 22 October 2024. The proceeding was then reviewed by the court on 24 October 2024. Later that day, the parties then provided my associate with electronic copies of the written submissions and supporting affidavits.
26. [26]
    During the course of the review on 24 October 2024 counsel for the Commonwealth said words to this effect:

…the only thing I would add from the Commonwealth’s point of view is, Your Honour, is when we conditionally did our costs submissions its in relation to the event – the event being the statement of claim having been struck out. If Your Honour moves to also considering the striking out of the proceedings in its entirety, then my instructions are to seek indemnity costs in that event, relying on the Calderbank offers that have been made on numerous occasions, and that’s all outlined in the submissions Your Honour in that regard.

Of course, if Your Honour is not minded to make that order, then the Calderbank offers will still be relied upon as a basis upon the standard costs order in that event.

27. [27]
    That differs markedly from the Commonwealth’s written submissions. The written submissions sought the striking out of the proceedings in their entirety. Costs were sought on the standard basis. There was nothing conditional about the written submissions on costs.
28. [28]
    The question, then, is: What should be done about the inconsistency? It would be unfair to Mr Abood to consider the Commonwealth as having applied for indemnity costs. He has not been given proper notice of such an application. Indeed, it would be necessary to ensure that he not only had notice, but also that he properly understood the distinction between the two measures of costs and the different principles that applied, and that he had a fair opportunity to respond. That means that the only realistic case management options are to:

    1. regard the parties as having made their submissions in writing – which was the direction made by the court – and to decline the Commonwealth’s attempt to, in effect, re-open the submissions on costs; or
    2. permit the parties to re-open the argument about costs,^[23] and to give Mr Abood a proper opportunity to both understand the orders now being sought and to properly respond.
29. [29]
    Option (b) would necessarily involve further delay and inconvenience. That is undesirable given that Mr Abood told the court that he was moving interstate. Option (b) is also likely to involve further consideration by the court, and possibly a further hearing. On balance, option (a) is preferable. The issue of costs should not be permitted to drag on. Finality is important. The court and Mr Abood were entitled to assume that the Commonwealth’s submissions on costs would be fully and properly contained within the submissions it filed in accordance with the court’s directions.
30. [30]
    The State’s submissions suffered from a similar difficulty. The State’s written submissions explained that:^[24]

“…it may have been open to the State to press a claim for indemnity costs, but it has chosen not to do so at present. Instead, it only seeks costs on the standard basis”

31. [31]
    A footnote explains that: “The State reserve (sic) its right to seek indemnity costs in the future; e.g. should any further application pursuant to rule 171 be made following any further amended pleadings (if the court were minded to permit such an opportunity, contrary to these submissions)”.
32. [32]
    That submission was made prior to Mr Abood’s submissions which, as explained, seemed to accept that his case is beyond any recognised legal cause of action. In any event, whilst a reservation of rights may be appropriate as between the parties inter se, it is difficult to see any justification for a party, in submissions to the court, reserving its right to make some other submission at some other time.^[25]
33. [33]
    For present purposes, there is no application by Mr Abood to replead. And, given there is no viable claim, the proceeding should be struck out. And, although it is a little murky, both the State and the Commonwealth seek costs on the standard basis. Subject to one matter considered below, that is, in my view, the appropriate costs order. 

Mr Abood’s Arguments

34. [34]
    Mr Abood raises the issue of the cross-applications relating to the requirements of the Personal lnjury Proceedings Act 2002 (Qld) (PIPA). The context is that the defendants made applications for the court to stay the court proceedings pending compliance by Mr Abood with the procedural requirements of PIPA. Mr Abood cross-applied to have the court dispense with the requirements of PIPA. Ultimately, that issue was not decided by the court because the defendants determined that they would consent to the case proceeding in the court. As Mr Abood points out, that change of stance occurred without explanation. The defendants, of course, were not obliged to explain.
35. [35]
    Ultimately, it is hard to justify the defendants recovering, as part of their costs of the proceeding, the costs of that issue. It was an issue the defendants decided not to pursue. There may well have been logical reasons for that stance. But ordering that Mr Abood pay those costs – of an application that was not pursued – is not justified. That is particularly so given that there was certainly some utility in the court dealing with the issues Mr Abood raised. It was unlikely that the PIPA process would have resolved the issues that needed to be resolved.
36. [36]
    Mr Abood has some other complaints about the defendant’s conduct of the proceeding, but those complaints are not shown to have affected the costs in a significant way. Mr Abood says that he was placed at a disadvantage at different times, but I did not perceive that Mr Abood was at any substantial disadvantage.^[26] His submissions and material were mostly relevant, intelligent and appropriate.
37. [37]
    Mr Abood points out that the case is complex, making it difficult for a self-represented litigant. He was not able to obtain legal representation because of the complexity. He also points out the nature of the case – which was “a desperate father who has been trying to seek and gain justice for the actions of the QPS and AFP that resulted in the abduction of my only child”. Mr Abood submits that he has a meritorious case, and that the problem was that the law has not extended far enough to provide him with a remedy. All of that can be accepted. But it is not a reason for disturbing the general rule about costs.
38. [38]
    Mr Abood raises his impecuniosity but that is not relevant.^[27] As the State points out, in Northern Territory v Sangare^[28] the High Court said this:

    1. “The statutory power to order costs affords the successful party necessary protection against unmeritorious litigation; and unmeritorious litigation is no less unmeritorious because it is pursued by a person who is poor or who is a litigant-in-person”.^[29]
    2. “... the courts have consistently rejected the suggestion that a costs order should not be made against an impecunious party because it would be futile to do so . . . . The very existence of the debt created by the order is a benefit to a creditor. The successful party is better off with the benefit of the order than without it. It simply cannot be assumed that the respondent will never have the means to pay the debt in whole or in part or that it might not otherwise be turned to valuable account by the appellant”.^[30]
39. [39]
    In his written submissions on costs, Mr Abood makes this further complaint:^[31]

…the First Defendant has unnecessarily incurred costs by bringing a barrister to appear on every occasion, including for reviews that often were 15-minutes to 60-minutes maximum. This was completely unreasonable, unethical, and unwarranted, and was nothing but an abuse of power by the First Defendant and a form of accruing significant costs for representation, so that they can attempt to claim costs against me as an innocent self-represented litigant.

40. [40]
    There was certainly nothing unethical or an abuse of power in the State exercising its right to be legally represented by a barrister at each review. The question of whether the barristers’ fees incurred were reasonable and warranted are matters for costs assessment when (and if) the level of costs are assessed.
41. [41]
    Mr Abood argues that:^[32]

…awarding costs against me in favour of the defendants for the entire proceeding would contravene Rule 681 of the UPCR and would be a punishment against me. As stated earlier, punishing a self-represented litigant for attempting to seek justice for the loss of his child would be unjust and unethical. It is likely that I would appeal this decision if the defendants were awarded costs against me which would no doubt accrue even further costs for all involved and would continue a matter which at this point, ought to be put to rest due to the deficiencies of the law.

42. [42]
    One can only be sympathetic to Mr Abood’s plight. He is right that the QPS took a view that Ms Kauffmann’s allegations were legitimate, and they facilitated her departure from Australia with the couple’s child. That said, the general principles explained above mean that the focus is on Mr Abood’s decision to bring and prosecute this proceeding, putting the defendants to expense. That is an expense for which the defendants are entitled to be compensated because it is an expense to which the defendants have been put by reason of the legal proceedings brought by Mr Abood.
43. [43]
    As explained, costs orders are designed to compensate the successful party rather than punish the unsuccessful party. Of course, the reality is that the unsuccessful party bears the burden of the successful party’s costs and so it may be little solace for Mr Abood to be told that costs are not awarded as a punishment.
44. [44]
    Mr Abood has a right to appeal, although an appeal only in relation to costs lies only by leave of the judge who gave the judgment or made the order, or, if that judge is not available, another judge of the court in the trial division.^[33] But that right, or qualified right, is not relevant to the costs discretion.
45. [45]
    Mr Abood makes this further submission:^[34]

If your Honour determines that the entire proceedings be struck out, then no costs orders ought to be made in favour of the defendants in this instance. If your Honour is minded to do so, then I seek for this matter to remain active in the proceedings, and that any further attempts at a SOC be required to file an application seeking leave for the SOC to be assessed by a Judge before it can be filed and served upon the defendants.

46. [46]
    Suffice it to say that no application for leave to amend or leave to replead is before the court, and no proposed further amended pleading is before the court. There is, in my view, no viable cause of action.

Conclusion

47. [47]
    It follows that the defendants are entitled to their costs on the standard basis, but excluding their costs associated with the PIPA process.