Dawson v Public Trustee of Queensland (No 2)
[2025] QSC 142
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- Unreported Judgment
- Dawson v Public Trustee of Queensland (No 2)[2025] QSC 142
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Dawson v Public Trustee of Queensland (No 2)[2025] QSC 142
Dawson v Public Trustee of Queensland (No 2)[2025] QSC 142
SUPREME COURT OF QUEENSLAND
CITATION: | Dawson v Public Trustee of Queensland (No. 2) [2025] QSC 142 |
PARTIES: | CHRISTINE MAREE DAWSON (applicant) v PUBLIC TRUSTEE OF QUEENSLAND (first defendant) AND CW HOOPER PTY LTD ACN 602 732 409 (second defendant) AND JOANNE MARGARET DAWSON (third defendant) AND NEIL ROBERT BLEE (fourth defendant) AND DEBORAH KAREN BLEE (fifth defendant) AND DAVID WILLIAMS (sixth defendant) AND ZACK MACKAY (seventh defendant) AND JASON KERNAGHAN (eighth defendant) |
FILE NO: | SC No. 5 of 2024 |
DIVISION: | Trial Division |
PROCEEDING: | Application |
ORIGINATING COURT: | Supreme Court of Queensland at Maryborough |
DELIVERED ON: | 18 June 2025 |
DELIVERED AT: | Brisbane |
HEARING DATE: | Oral submissions on the strike out application and on the question of costs were heard on 31 March 2025 Written submissions were received pursuant to orders made 23 May 2025. The decision was made without further oral hearing. |
JUDGE: | Davis J |
ORDERS: |
|
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – PARTIES AND NON-PARTIES – COSTS IN PROCEEDINGS WHERE MULTIPLE PARTIES – COSTS BETWEEN CO-DEFENDANTS – where the plaintiff brought a claim against the first and second defendants and others for various relief relating to a property previously owned by a member of the plaintiff’s family – where first and second defendants successfully applied to have the claim against them dismissed – where the first and second defendants seek costs – whether the plaintiff should pay the costs of the first defendant on the standard basis – where it was held that the discretion to award indemnity costs arose – where the second defendant has provided the court with correspondence demonstrating that the plaintiff was informed that their claim was untenable several years before the claim was brought – whether the plaintiff should pay the costs of the second defendant on an indemnity basis Uniform Civil Procedure Rules 1999 (Qld), r 681 Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333; [2019] HCA 29, considered Birketu Pty Ltd v Atanaskovic (2025) 99 ALJR 321; [2025] HCA 2, considered Dawson v Public Trustee of Queensland [2025] QSC 115, related London Scottish Benefit Society v Chorley (1884) 13 QBD 872, cited |
COUNSEL: | No appearance or written submissions for the plaintiff/respondent L Sheptooha drew written submissions for the first defendant/applicant W F Brown drew written submissions for the second defendant/applicant |
SOLICITORS: | No appearance or written submissions for the plaintiff/respondent CE Christensen, Crown Solicitor for the first defendant/applicant C.W. Hooper & Hooper for the second defendant/applicant |
- [1]The Public Trustee of Queensland, who was the first defendant, and CW Hooper Pty Ltd, who was the second defendant, were both misnamed in the proceedings. They brought applications to correct that error and to have the claims against them summarily dismissed.
- [2]On 23 May 2025, I made orders correcting the proper description of the first and second defendants in the proceedings, and made further orders, the effect of which was to dismiss the claims brought against them.[1]
- [3]I was concerned as to the effect of the High Court’s decisions in Bell Lawyers Pty Ltd v Pentelow[2] and Birketu Pty Ltd v Atanaskovic[3] upon the question of costs. I gave directions for the filing of written submissions by the first and second defendants and the plaintiff, and directed that the question of costs would be determined without further oral hearing.
- [4]Submissions were received from both the first and second defendants. No submissions were received on behalf of the plaintiff.
- [5]In Bell and Birketu, the principle that a litigant who represents themselves in proceedings is not entitled to claim for that work was affirmed. The Chorley[4] exception, that self-represented lawyers could claim professional costs, was disapproved. The “in-house lawyer rule”,[5] which permits litigants to claim costs of employed lawyers, was not disturbed.
The costs of the Public Trustee of Queensland
- [6]The Public Trustee seeks its costs on the standard basis.
- [7]In the primary judgment, the solicitors for the Public Trustee are noted as “Official Solicitor of the Public Trustee of Queensland”. As has been pointed out in the further written submissions, that is an error. The Public Trustee was represented by the Crown Solicitor. That being the case, neither the Chorley principle nor the “in-house lawyer rule” need be considered.
- [8]As regards the claim against the Public Trustee, that claim has failed and there is no reason to suggest a departure from the usual rule that costs follow the event.[6]
- [9]It is appropriate to order that the plaintiff pay the Public Trustee’s costs on the standard basis.
The costs of CW Hooper Pty Ltd
- [10]The second defendant is an incorporated practice. By its written submissions it only seeks costs of work by an employed solicitor and paralegals, and outlays such as counsel’s fees. No claim is made for work performed by “the principal”, who I assume is the controller of the incorporated practice.
- [11]
- [12]That submission is accepted.
- [13]In the principal judgment, I pointed to various features of the case which led me to conclude that the discretion to award costs in favour of the second defendant on the indemnity basis arose.[9]
- [14]In addition to those matters raised in the primary judgment, further relevant correspondence has come to light.
- [15]On 2 August 2018, Bundaberg solicitors, Payne Butler Lang, who then held instructions for the plaintiff, wrote to the second defendant on 2 August 2018 in these terms:
“We act on behalf of Christine Maree Dawson, the granddaughter of Josephine Schroder and Percy Schroder of 30 Railway Street, Laidley.
Our client’s instructions are that her grandfather died in 1993 and her grandmother in 1997.
Our client believes that she is the beneficiary of a testamentary trust established under either her grandfather’s or grandmother’s Will.
We request that you provide any information held in your records on any trusts established that our client is a beneficiary of.
We look forward to hearing from you shortly.”
- [16]The very next day, the second defendant responded in these terms:
“We refer to your facsimile letter of the 2nd August, 2018 in relation to the abovenamed Estates.
We advise the Will of Percy Schroder left the whole of the Estate to his wife, Josephine Augusta Schroder.
We advise the Will of Josephine Augusta Schroder left the residuary estate to her four surviving children.
Accordingly, there is no testamentary trust of which your client is a beneficiary.
We trust this answers your query.”
- [17]The position asserted by the second defendant in its letter of 3 August 2018 is correct.
- [18]Notwithstanding having been told, now almost seven years ago, what the true position was, the plaintiff instituted proceedings in 2024, maintained an untenable position, and when the first and second defendants brought their application to strike out her proceedings, she did not even appear at the application.
- [19]In my judgement this is a clear case for the award of costs on the indemnity basis.
Orders
- [20]The appropriate orders, which I make, are as follows:
- The plaintiff pay the first defendant’s costs of the proceedings on the standard basis.
- The plaintiff pay the second defendant’s costs of the proceedings limited to work performed by its employees, together with outlays and expenses including counsel’s fees all on the indemnity basis.
Footnotes
[1]Dawson v Public Trustee of Queensland [2025] QSC 115.
[2](2019) 269 CLR 333.
[3](2025) 99 ALJR 321.
[4]London Scottish Benefit Society v Chorley (1884) 13 QBD 872.
[5]Birketu Pty Ltd v Atanaskovic (2025) 99 ALJR 321 at [20].
[6]Uniform Civil Procedure Rules 1999, r 681(1).
[7](2025) 99 ALJR 321.
[8]At [27] and [30].
[9]Dawson v Public Trustee of Queensland [2025] QSC 115 at [35].