McEwan v Commissioner of Taxation
[2024] QSC 286
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- Unreported Judgment
- McEwan v Commissioner of Taxation[2024] QSC 286
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McEwan v Commissioner of Taxation[2024] QSC 286
McEwan v Commissioner of Taxation[2024] QSC 286
SUPREME COURT OF QUEENSLAND
CITATION: | McEwan v The Commissioner of Taxation [2024] QSC 286 |
PARTIES: | JULIE McEWAN (plaintiff) v THE COMMISSIONER OF TAXATION & ORS (first defendant) |
FILE NO: | BS 971/2022 |
DIVISION: | Trial |
PROCEEDING: | Applications (Self-represented Litigant List review) |
ORIGINATING COURT: | Supreme Court at Brisbane |
DELIVERED ON: | 21 November 2024 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 4 November 2024 |
JUDGE: | Freeburn J |
ORDERS: | The plaintiff pay 75 per cent of the defendants' costs of the applications. |
CATCHWORDS: | PROCEDURE – CIVIL PROCEDURE IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW THE EVENT – where, following an application by the plaintiff to amend her statement of claim, the court permitted a limited set of amendments – where the plaintiff circulated unprompted versions of pleadings resulting in confusion – whether the costs should follow the event in a way that is divided favourably to the defendants Uniform Civil Procedure Rules 1999 (Qld), r 681 Deeson Heavy Haulage Pty Ltd v Cox (No 2) [2009] QSC 348, cited McEwan v Commissioner of Taxation [2024] QSC 252, related Mok v Minister for Immigration, Local Government and Ethnic Affairs (1993) 47 FCR 81, cited King v Australian Securities and Investments Commission [2019] QCA 121, applied Sochorova v Commonwealth of Australia [2012] QCA 152, applied Spargo v Haden Engineering Pty Ltd (1993) 60 SASR 39, cited |
COUNSEL: | The plaintiff appeared on her own behalf K Boomer for the Commonwealth defendants D M Favell for the State defendants |
SOLICITORS: | The plaintiff appeared on her own behalf Australian Government Solicitor for the Commonwealth defendants Crown Law for the State defendants |
- [1]This is a proceeding managed on the Supervised Case List involving self-represented litigants. In the last interlocutory skirmish between the parties, Ms McEwan sought to rely on an amended statement of claim and a further affidavit. In McEwan v Commissioner of Taxation [2024] QSC 252 it was held that Ms McEwan was permitted to rely on a limited set of amendments to her pleading, but leave was not granted for Ms McEwan to rely on the further affidavit.
- [2]The outstanding question is who should bear the costs of those two applications.
Costs Follow the Event
- [3]Under rule 681(1) of the Uniform Civil Procedure Rules 1999 (Qld) the costs of an application in a proceeding follow the event, unless a court orders otherwise. In interlocutory disputes, other jurisdictions have different ways of dealing with costs – but in Queensland, in exercise of the discretion, the general rule is that the costs of the skirmish follow the event.
- [4]Ms McEwan seeks costs in the cause or a similar order.
- [5]The Commonwealth defendants seek 75 per cent of their costs on the standard basis. The State defendants have adopted the same position as the Commonwealth defendants. There are two submissions made:
- The relative success the defendants had in the application; and
- the conduct of Ms McEwan leading to wasted costs.
- [6]Ms McEwan disputes the defendants’ estimate of 75 per cent on the basis that everyone lost some aspect of the application.
- [7]Courts generally make cost orders for the whole of the application or the proceeding. In some cases courts may exercise the discretion to divide the costs.[1] Whether costs should be divided depends on several factors. For example. a court may choose to divide costs where a successful party loses in relation to separate issues in the proceeding. Perry J in Spargo v Haden Engineering Pty Ltd explained that it is common practice for a party to raise issues, and to lose on some of them.[2] The successful party losing on some issues does not always mean that an unsuccessful party would be entitled to the costs of those issues. In Mok v Minister for Immigration, Local Government and Ethnic Affairs Keely J expressed that a court should only divide costs against a successful party if the issue was unfairly raised.[3]
- [8]The nature of the order made in the judgment with regard to the pleadings was complicated and related to specific paragraphs of the pleading. It is therefore difficult to identify with certainty a clear winner. Given the number of disputes, and the fact that many of them were discrete pleading issues, this is an appropriate case to divide the costs or at least arrive at a just apportionment.
- [9]There are different ways courts calculate how costs are to be divided. On one side of the range, courts have calculated who has won by ‘tallying the “wins and losses” on issues’ and to then come up with an order that apportions costs to each party.[4] Here the preferable view is to keep ‘the assessment as simple and as inexpensive as possible’.[5] This approach was taken in Sochorova v Commonwealth of Australia[6] and King v Australian Securities and Investments Commission.[7] Here, formulating a costs order that reflects the order made in the judgment is likely to be a complicated and time-consuming process. The order is paragraph-specific (with regard to Ms McEwan’s statement of claim), and the significance of each paragraph to the proceeding would need to be assessed, to determine who has won. This is inconsistent with an approach that is ‘simple and inexpensive’.[8]
- [10]There are several factors to consider:
- There were two broad issues dealt with in the judgment: (1) the pleadings issues, and (2) whether Ms McEwan could rely on her affidavit of 23 August. On the first issue, excluding those cases where the proposed amendments were allowed in the part, the judgment refuses leave to amend in 16 categories of proposed amendment and leave to amend was allowed for 7 categories of proposed amendment. Ms McEwan was unsuccessful on the second issue.[9]
- The defendants did not oppose some of the amendments. The State defendants stated in their submissions that they were not bothered with minor insertions here and there.[10] The defendants did not raise any significant issues that were unreasonable or unfair.[11]
- As pointed out by Ms McEwan at the review, leave was granted for Ms McEwan to amend the pleading so as to remove the heading ‘Particulars’ where it appears. That was because, at this late stage, Ms McEwan sought to have the defendants positively plead to the allegations beneath those headings. The defendants did not object to that even though it required a substantial revision of their defences.
- On the other hand, other paragraphs of the proposed pleading made no sense and were not permitted.
- Ms McEwan circulated numerous versions of her pleading to the parties and my associate resulting in some confusion.
- [11]After weighing these factors, I consider that the Commonwealth defendants’ estimate of 75 per cent is a reasonable one. There is no utility in tallying up each successful or unsuccessful amendment to Ms McEwan’s pleading, and the significance of the permitted amendments – especially considering the approaches taken in Kruskovsa and King. Of particular bearing to the assessment is that Ms McEwan was wholly unsuccessful in the application to rely on a further affidavit.
Wasted Costs
- [12]The second point made by the Commonwealth defendants is that the conduct of Ms McEwan resulted in wasted costs. Despite the lens being focused on Ms McEwan’s conduct, the purpose of costs orders should be kept in mind – that is, costs orders are not intended punish the unsuccessful party. Instead, the purpose is to indemnify the successful party.[12]
- [13]As outlined in the judgment, the following features were present:
- Ms McEwan circulated different versions of the pleadings to the parties and my associate, which required the defendants to produce two sets of submissions in response; and
- Some of the changes were not tracked.
- [14]Those issues, in the context of overly-complex pleadings made the application to amend pleadings more difficult than it should have been.
- [15]However, keeping the general rule in mind, Ms McEwan did have modest some success in the application – some amendments were permitted to her pleading. The success she experienced in the application can be factored into an order that allows the defendants to recover 75 per cent of their costs.
Conclusion
- [16]An admittedly rough assessment that the defendants recover 75 per cent of their costs of the applications is the appropriate order. It reflects the defendants’ relative success and the wasted costs.
Footnotes
[1] Hughes v Western Australian Cricket Assn Inc (1986) ATPR 40-748; Todrell Pty Ltd v Finch (No 2) [2008] 2 Qd R 95.
[2] (1993) 60 SASR 39, 57-8.
[3] (1993) 47 FCR 81, 84 (‘Mok’).
[4] BHP Billiton Iron Ore Pty Ltd v National Competition Council (No 2) [2007] FCA 557, [23].
[5] [2012] QCA 152, [21].
[6] Ibid.
[7] [2019] QCA 121.
[8] Sochorova (supra), [21].
[9] See judgment, [130]-[140].
[10] See Ibid [41].
[11] See Mok, 84.
[12] See Harold v Smith (1860) 157 ER 1229, 1231. See also the discussion in Dal Pont, Law of Costs (LexisNexis, 5th ed, 2021), [7.5].