DJRA Pty Ltd v Griffin [2020] QDC 287

DISTRICT COURT OF QUEENSLAND CITATION: DJRA Pty Ltd v Griffin [2020] QDC 287 PARTIES: DJRA PTY LTD ACN 152 353 556 AS TRUSTEE FOR DJRA UNIT TRUST ABN 83 566 030 239 (applicant/plaintiff) v COURTNEY JOHN GRIFFIN (defendant/respondent) FILE NO: 1919/20 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: District Court, Brisbane DELIVERED ON: 17 November 2020 DELIVERED AT: Brisbane HEARING DATE: 7 August 2020 JUDGE: Richards DCJ ORDER: 1. The plaintiff pay the defendant’s costs of the application filed on 2 July 2020. 2. Costs to be assessed unless otherwise agreed. CATCHWORDS: PROCEDURE– CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS– COSTS– GENERAL RULE: COSTS FOLLOW EVENT– where the primary purpose of awarding costs to the successful party is to indemnify them against expenses that may not have been incurred otherwise - where costs can be awarded in relation to a particular question or part of a proceeding or in a percentage basis – whether the most important factor to be considered is the result of the litigation – where the defendant was successful in resisting the application of the plaintiff - where the plaintiff was going to proceed with an injunction application in the absence of an undertaking by the defendant – where the plaintiff had deficiencies in its evidence and matters of law in the application - where the plaintiff was unsuccessful in the application – where the plaintiff is to pay the defendants cost of the application LEGISLATION: r 681 Uniform Civil Procedure Rules 1999 (Qld) CASES: Oshlack v Richmond River Council (1998) 192 CLR 72 COUNSEL: J P Morris for the applicant/plaintiff -- 1 of 3 -- 2 Mr S Reidy for the defendant/respondent SOLICITORS: JHK Legal for the applicant/plaintiff NB Lawyers for the defendant/respondent Introduction [1] Judgment was delivered in relation to an application for injunctive relief on 31 July 2020. The parties asked for permission to file written submissions on costs and those submissions were filed on 7 August 2020. [2] The defendant was successful in resisting the application of the plaintiff. Rule 681 of the Uniform Civil Procedure Rules 1999 (Qld) provides that costs of a proceeding should follow the event unless there is an order otherwise. It is accepted by the plaintiff that this general principle should only be departed from with good reason. [3] The plaintiff submitted however that the application was finely balanced on the evidence and the major issues in dispute between the parties still needing to be determined, noting that it was found that any damage suffered by the plaintiff could be satisfied by monetary award. The plaintiff also submitted that the conduct of the defendant was such that it ought to disentitle it to the beneficial exercise of the discretion, and therefore the costs should be costs in the cause or costs reserved. [4] The plaintiff maintains that it sought an undertaking from the defendant as early as 26 May 2020 not to conduct business in competition with it or proceedings would be instituted. Notwithstanding that, the defendant did not respond to that notice and his affidavits were filed at the last minute resisting the injunction. [5] The defendant maintains that he was successful in his application to have the matter dismissed. The defendant submits that it was pointed out in Oshlack v Richmond River Council (1998) 192 CLR 72 per McHugh J at 66 that the most important factor to be considered in the exercise of a discretion to award costs is a result of the litigation. It is further submitted that the plaintiff failed on both establishing a prima facie case and on the balance of convenience issue as it was his failure to make a prima facie case which caused the deficiencies in the evidence and matters of law. The defendant simply submits that it is not an appropriate case to reserve costs. -- 2 of 3 -- 2 [6] The defendant pointed out that the plaintiff was always going to proceed with his application in the absence of undertakings which it demanded. [7] I agree with the defendant’s submissions that the plaintiff in the absence of an undertaking was always going to take this matter to an application for an injunction. The plaintiff exhibited the employment contract which had a poorly drawn restraint of trade clause which was too wide for an injunction in the circumstances. It also did not put on sufficient evidence in relation to the confidentiality or habituality of the referrers business relationship with the company. [8] In those circumstances there were deficiencies in the evidence in the affidavit, as well as difficulties with the drafting of the contract to employment which meant that the application was always likely to be unsuccessful. It is appropriate that the plaintiff pay the defendant’s costs of the application filed on 2 July 2020 as agreed or assessed. -- 3 of 3 --