A self-represented litigant has been ordered by the New South Wales Supreme Court to pay $75,000 in indemnity costs, after he made similar unsuccessful claims in that court and in two other states.
The Queensland man had sought more than $5 million in damages from online stockbroking firm CommSec, alleging that unauthorised access to his trading account had caused the destruction of his portfolio he valued at $3.5 million.
He alleged various breaches by CommSec of the Competition and Consumer Act 2010 (Cth), Corporations Act 2001 (Cth) and Australian Securities and Investments Commission Regulations 2001 (Cth).
On 16 September in Sydney, Justice Ashley Black ordered the litigant pay CommSec’s costs on an indemnity basis, quantified by a gross sum costs order, for one of the two proceedings begun in the jurisdiction, saying the man’s persistence “was unreasonable and involved an element of delinquency”.
In June and September last year, he began proceedings in the Queensland Supreme Court, both of which were dismissed by Justice Frances Williams in November.
In the first proceeding, the litigant was refused leave to file a draft statement of claim because it was “clearly deficient” in respect of all pleading rules and “completely incomprehensible”. That proceeding was then dismissed.
The second proceeding had already been dismissed as an abuse of process, given that it raised “the same or substantially the same cause of action as the earlier proceeding”.
The litigant also applied for a temporary stay of the Queensland proceedings because by then he had begun proceedings in NSW, which he considered to be “a better forum”. That application was refused.
In October, the litigant began proceedings in the Australian Capital Territory Supreme Court, making the same, or a substantially similar, claim to the one brought in the other two states.
In March this year, ACT Justice Andrew Muller set aside that claim as an abuse of process, saying it was “the only conclusion available” to him. The litigant was ordered to pay CommSec’s court costs
In April, NSW Justice Gregory Sirtes dismissed the litigant’s claim begun in November last year in that jurisdiction, saying it was “vexatious and oppressive, and an abuse of process, for him to seek to prosecute that claim again in this Court because he is not satisfied with the outcome (of the Queensland proceedings)”.
The litigant was again ordered to pay CommSec’s court costs, with CommSec’s application for indemnity costs refused.
In that same court last week, Justice Black said that via an order made in August last year, the litigant was given notice that documents he had filed in another proceeding against CommSec did not constitute a statutory demand, but the litigant had made no effort to withdraw them since.
“I accept that the fact that (the litigant) is a self-represented litigant is relevant to whether his conduct of the proceedings was sufficiently unreasonable to warrant an order for indemnity costs, although I also bear in mind that he has had an opportunity to familiarise himself with Court processes in his previous unsuccessful claims against (CommSec) in other courts,” he said.
He said the fact the amounts claimed by the litigant had been disputed all along, and that the litigant had made no effort to verify those amounts, showed unreasonableness and “involved an element of delinquency”.
“(CommSec) seeks a gross sum costs order on the basis that any costs assessment is likely to be protracted and expensive; that the costs incurred have been greater than they would have been had (the litigant) conducted the proceedings properly and reasonably; and there is reason to believe that (he) may be unable to pay any costs that were ordered against him,” he said.
Justice Black accepted CommSec’s submissions, saying a gross sum costs order was a mechanism to assess costs in a fair and cost-efficient way.
“I am satisfied that the evidence led by (CommSec) is sufficient to support the quantification of its costs in the amount that it claimed, particularly where those costs are to be paid on an indemnity basis,” he said.
“In reaching that view, I have not neglected the fact that the costs claimed by (CommSec) are substantial…
“However, I also recognise that, first, (the litigant’s) approach to litigation and the volume of his correspondence will have increased those costs; and, second, that a financial institution is plainly entitled to treat the issue of a creditor’s statutory demand against it as a serious matter in determining the resources to be devoted to responding to that demand.
“The size of the costs claimed by (CommSec) does not provide sufficient reason not to make the gross sum costs order sought by (CommSec) in these circumstances, where the costs claimed are sufficiently supported by the evidence.”
Read the case here.
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