Butler v Crowley & Greenhalgh Solicitors [1999] QSC 339

) S'c 1~ I 33'i . Reporting Bureau TRANSCRIPT OF PROCEEDINGS Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. . . .:- ;::-.._.. :-: .-c·-;:'''-C:-:-=:-l '-' . . -. -_.-' ' ":"',:.~,~ ;:\:.:;:,::,:-::,',';:" ::-;:"::',,3 ..:::.J SUPREME COURT OF QUEENSLAND ) CIVIL JURISDICTION MUIR J ) No 6521 of 1996 CLIVE GEORGE BUTLER and CROWLEY & GREENHALGH Solicitors Formerly LYNN CROWLEY & COMPANY Solicitors No 9292 of 1996 CLIVE GEORGE BUTLER and SIMMONDS CROWLEY & GALVIN Solicitors BRISBANE .. DATE 11/11/99 JUDGMENT 1 Plaintiff Defendant Plaintiff Defendant \\ -- 1 of 7 -- 111199 T1/RAG19 M/T 6547/99 (Muir J) HIS HONOUR: I publish my reasons in this matter. HIS HONOUR: The problem is now that we're going to have to, I think, re-convene in order for me to pronounce a formal judgment, but in any event if we have to do it, we have to do it. So if you could prepare a draft, show it to the Butlers, and Mr and Mrs Butler will then have to appoint a time for the handing down of judgment. 2 JUDGMENT 10 c20 c 30 c 40 r '-- 50 60 -- 2 of 7 -- ) Plaintiff: Defendant: Plaintiff: Defendant: CATCHWORDS: Counsel: Solicitors: Hearing date: sc't« /539 SUPREME COURT OF QUEENSLAND REGISTRY: BRISBANE No. 6521 of 1996 CLIVE GEORGE BUTLER AND CROWLEY & GREENHALGH Solicitors Formerly LYNN CROWLEY & COMPANY Solicitors No. 9292 of 1996 CLIVE GEORGE BUTLER AND SIMMONDS CROWLEY & GAL YIN Solicitors Reasons for Judgment: Muir J Delivered: 11 November 1999 PRACTICE AND PROCEDURE -application to strike out objections to costs statements - abuse of process - scandalous material- Uniform Civil Procedure Rule 717 Mr P. A. Keane QC SG with Mr Derrington for the applicant/defendants Mr C. G. Butler appeared in person Minter Ellison for the applicant/defendants 29 October 1999 [I] The defendants apply to strike out or have removed from the court files five objections to costs statements filed in actions 6521 of 1996 and 9292 of 1996 on the basis that they are vexatious and scandalous. In both actions the plaintiff sues his former solicitors. The detail of the allegations in the actions is of no moment for present purposes. Both actions have not progressed very far. Statements of claim -- 3 of 7 -- ) ) ) ) 2 delivered in them have been struck out twice and a third version of each statement of claim was delivered in early March of this year. (2] Three orders for costs were made against the respondent in action S9292 of 1996 [3] [4] and two in action S6521 of 1996. The applicants, in the course of having the costs assessed, filed and served costs statements. The objections referred to earlier were filed in response to those costs statements under R 717 of the Uniform Civil Procedure Rules. The applicants rely on the Court's inherent power to control its own proceedings and to restrain abuse of process: Alexander v Fitzpatrick [1981] Qd R 359,363. It is submitted on behalf of the applicants that each of the objections contains material which is scandalous. They refer to Christie v Christie (1873) LR 8 Ch App 499 where Lord Selbourne LC, at 503-504, said in relation to the question of whether or not allegations in a bill to restrain the issuing of a prospectus were scandalous - "The sole question in such a case is whether the matter alleged to be scandalous ... would be admissible in evidence to show the truth of any allegation in the bill which is material with reference to the relief that is prayed." A point made in the above passage is that allegations of a scandalous nature may be made legitimately if they are material to an issue or issues to be decided in the case. Matter is "scandalous" if, as well as being irrelevant, it is indecent or offensive or consists of allegations made for the purpose of abusing or (possibly) prejudicing the opposite party: 36 Halsbury's Laws of England 4th ed para 74 f.n. 2; Cashin v Craddock [1876] 3 Ch D 376 and Coyle v Cuming (1879) 40 L.T. 455. In Australian Civil Procedure 4th ed at 261 the learned author states - "A scandalous pleading is one that is indecent or offensive and is aimed to prejudice the opposite -- 4 of 7 -- ) [5] 3 party". In my view that definition is too restrictive. The authorities do not support the conclusion that prejudice or an intention to cause prejudice are necessary elements of scandalous conduct. Also of relevance to a determination of whether material should be regarded as "scandalous" is the interest of the Court in the maintenance of the integrity of its processes. I will not attempt to analyse the objections in any detail. It is sufficient if I select one of them for discussion as they all follow a generally similar pattern. In the objection to the bill of costs delivered in respect of Chesterman J's costs order of 8 October 1998 in S9292 of 1996, items 1 to 119 in the bill of costs are objected to on grounds including - (a) the order of Chesterman J is subject to appeal; (b) Chesterman J refused (presumably wrongfully) to receive affidavit evidence; (c) the applicant's solicitors committed an abuse of process in making application to have the respondent's statement of claim struck out before Chesterman J; (d) the applicant's solicitors committed an abuse of process in "submitting fees, which they unjustly and improperly incurred" before the hearing of the appeal from the judgment of Chesterman J; (e) Chesterman 1's decision is invalid as a result of bias on his part and the fees claimed therefore "result from an abuse of the process of the Court and an invalid decision". [6] There are also general allegations of wrongdoing on the part of the applicants and their solicitors as well as more specific allegations of misconduct. In two of the -- 5 of 7 -- 4 objections iUs alleged that the applicants' solicitors acted in the matter whilst in a position in which their interests conflicted with those of their clients. [7] The instituting of an appeal from a judgment does not operate as a stay of the judgment and the applicants are entitled to have assessed costs the subject of any costs orders made in their favour against the respondent. The other types of "objections" raised by the respondent, clearly, are not ones which could be entertained by a Registrar on an assessment of costs. The Registrar must proceed on the assumption that a costs order was duly made. It is not the Registrar's role, in effect, to sit as a court to review the correctness of the order for costs or to determine whether proceedings were conducted in such a way as to amount to fraud or abuse of process. I endeavoured to explain matters of this nature to the respondent on the hearing of the applications. But, it would seem from the further written submissions made by the respondent, that such attempts were unsuccessful. The thrust of the respondent's approach was, and continues to be, to advance matters which challenge the validity of the costs orders or to otherwise raise issues which may fall for determination in the trial of the actions or, possibly, in appeals which he has instituted. In other words, the matters raised by the respondent are for determination (if they are to be determined at all) in a forum other than that provided by the Rules in relation to the assessment of costs. [8] At the hearing the respondent submitted that he needed time to consider the written outline of submissions delivered by counsel for the applicants. Despite the fact that· the grounds relied on to support the application and advanced in the outline were essentially those previously communicated to the respondent in correspondence, I allowed the respondent further time to prepare and deliver written submissions. I -- 6 of 7 -- 5 also invited the respondent to submit amended costs statement which focused on matters relevant to the Registrar's deliberations. That invitation was not accepted. The respondent's further submissions make assertions of abuse of process, fraud, malice and conflict of interests similar to those made in the objections. They also rely on the existence of appeals against one or more of the subject orders. [9] The applicants should not be put to the trouble and expense of meeting the plethora of irrelevant allegations in the objections. Because the allegations are irrelevant to questions for determination by the Registrar, they amount to no more than abusive and offensive statements. They are scandalous in the sense discussed earlier and should not be left on the Court file. The Court should not permit its processes to be used by a litigant to make such allegations against another litigant. As Bacon V.c. said in Cashin v Craddock (supra) in speaking of the privileges afforded litigants - "They have not acquired the privilege of abusing the practice of the Court or of bringing foul and offensive charges against the persons who are sued as Defendants, which charges the Defendants have no competent means of meeting ... It would be an abuse of the practice of the Court to permit such a document as this to remain on the file." [10] As there is little in any of the objections which does not fall into the pattern I have been discussing, it is appropriate to strike out the whole of the documents rather than to attempt to salvage small parts of some of them. That course is particularly appropriate here, as to leave in place some parts of the documents would be to permit the scandalous material to remain on file. [11] I invite submissions on an appropriate form of order. -- 7 of 7 --