Combe v Bank of Queensland (No 2) [2012] NSWSC 534

Supreme Court New South Wales

Medium Neutral Citation: Combe v Bank of Queensland (No 2) [2012] NSWSC 534 Hearing dates: 17 May 2012 Decision date: 24 May 2012 Jurisdiction: Common Law Before: Schmidt J Decision: Ms Combe to bear the defendant's costs of the motion filed by the defendant in May 2011, as well as the costs of the motions which she filed in August 2011, November 2011 and April 2012, as agreed or assessed. Catchwords: PROCEDURE - costs - plaintiff to bear costs of motions Legislation Cited: Uniform Civil Procedure Rules 2005 Cases Cited: Combe v Bank of Queensland [2011] NSWSC 1347 Category: Procedural and other rulings Parties: Faye-Diane Combe (Plaintiff) Bank of Queensland (Defendant) Representation: Counsel: Mr DJ Barnett (Defendant) Solicitors: In person (Plaintiff) DibbsBarker Lawyers (Defendant) File Number(s): 2010/373940 Publication restriction: None

Judgment 1By a summons filed in November 2010, Ms Combe, an unrepresented litigant, sought to establish the existence of the Principality of Snake Hill, of which she claimed to be a citizen; that a property located at Castle Hill, of which the plaintiff had obtained possession, formed part of the Principality; and that she held certain leases over part of that property. She also sought to challenge orders as to possession of the property made in favour of the plaintiff and she sought to pursue relief in relation to the loss of certain of her personal goods, which she claimed the plaintiff wrongly took, when it came into possession of the property. 2Ms Combe sought orders extending a caveat which she had placed over the property; she sought to have her rights under her leases 'accorded'; and that her goods be returned. White J refused the relief sought in relation to the caveat in November 2010. 3In November 2011, I made orders striking out the initiating summons, refusing Ms Combe leave to proceed on a proposed amended summons, but giving her leave to amend in relation to the goods in question, which she then claimed that the defendant had not only taken, but had wrongly disposed of. As to costs, I ordered that unless the parties approached to be heard, Ms Combe was to bear the plaintiff's costs of the motions (see Combe v Bank of Queensland [2011] NSWSC 1347). 4By a motion filed in November 2011, Ms Combe sought an order that the defendant pay her costs of the motions. When she did not appear on the hearing of the motion in February 2012, orders were made that unless she approached within 7 days, to have the matter restored to the list, the motion would be dismissed and the matter would be struck out. Ms Combe approached and in March filed a motion seeking leave to proceed by way of statement of claim. By consent, the Registrar granted that leave, which requires that the statement of claim be filed by 18 May. He also ordered that there be no order as to costs in relation to that motion. 5In April 2012, Ms Combe filed a further motion, in relation to the costs dealt with in the November judgment. At the hearing she pressed an order that the defendant pay her costs of the motion. She relied on three affidavits which she had sworn, in which she recounted the claims she seeks to pursue in these proceedings, in relation to the defendant's wrongful disposal of her goods, after it took possession of the Castle Hill property. 6The goods are claimed to include Ms Combe's original art works, tools, frames and other materials. In her affidavits, Ms Combe referred to various other matters, not relevant to the issues presently before the Court, such as allegations about unknown persons hacking into her phone, taking mail from her post office boxes, ongoing police investigations and referral of complaints to other authorities. 7Ms Combe's evidence was that she is living on a disability support pension. She described the stress caused by the loss of her goods and the pursuit of these proceedings. She also referred to steps she had taken to obtain Legal Aid; the legal assistance which she had paid for; and she explained the circumstances in which she came not to attend the February hearing. 8In her submissions Ms Combe explained that her application for costs rested on the defendant's wrongful disposal of her goods, that being the reason she had approached the Court in 2010. Her case is that when she commenced the proceedings, the goods were still in the defendant's possession and that they were not disposed of until April 2011, contrary to assurances later given that they would be returned. In her opinion costs were thrown away as the result of the defendant's conduct, it having misled her and the Court as to the whereabouts of her goods. 9The defendant's case was that a costs order would be made in its favour. The summons had been struck out and leave to file the amended summons refused, because they were not in proper form and did not comply with the applicable requirements of the Uniform Civil Procedure Rules 2005. While Ms Combe had been given an opportunity to properly plead the only part of the case she had been given leave to pursue, namely in relation to the goods in question, she had not succeeded on either motion dealt with in the November judgment. In the circumstances there would be no departure from the usual order that costs should follow the event. 10In the circumstances which have arisen, the usual order would be one in favour of the defendant. Ms Combe's summons was struck out and she was refused leave to proceed on her amended summons. Like all litigants, she is obliged to adhere to the requirements of the applicable Rules. At the November 2011 hearing, Ms Combe indicated that she no longer sought to press orders for the extension of her caveat, but that she did wish to press her rights in relation to her leases and in relation to her goods. Her motion for leave to proceed on the proposed amended summons did not succeed. She was granted leave to proceed in respect of the claim pressed in relation to her goods, which required that she be given leave to amend her summons, in that respect. The plaintiff did not oppose her being given that opportunity and has consented to her doing so by way of a statement of claim. 11There is no basis, in those circumstances, for an order that the defendant pay Ms Combe's costs of the motions dealt with in the November judgment. There have plainly been costs thrown away as the result of the defective originating process on which Ms Combe first proceeded. The defendant succeeded on its motion and Ms Combe's motion, by which she sought to proceed in respect of another defective initiating process, was dismissed. That Ms Combe is an unrepresented litigant, who may have a good claim in relation to the goods in question, is not a basis upon which her unsuccessful pursuit of the matters raised on the motions dealt with in the November judgment, may justly be ignored. To the contrary, in my view, as a matter of justice she ought to bear the costs which have resulted from her unsuccessful conduct of this part of the litigation. 12For the same reasons, Ms Combe must also bear the costs of the November 2011 and April 2012 motions, by which she unsuccessfully pursued an order as to costs in her favour. The March 2012 motion was dealt with by the Registrar and does not need to be further dealt with by me.