Case: Huntsman Chemical Company Australia Ltd v International Pools Australia Ltd (1995) 36 NSWLR 242
Outcome: discussed
Referring to Huntsman Chemical Company Australia Ltd v International Pools Australia Ltd (1995) 36 NSWLR 242 (" Huntsman "), Mr Rambaldi submitted that Mr Spalla was put on notice by letters dated 26 May 2005 and 15 March 2006 that, if he persisted with his application, Mr Rambaldi and Irlmond would apply for their costs to be paid on an indemnity basis. Mr Rambaldi contended that no party, even if unrepresented, is entitled to commence or maintain proceedings "irresponsibly and without regard to the prospects of success". Moreover, Mr Rambaldi argued that an award of indemnity costs was justified upon the ground that Mr Spalla maintained unfounded and unnecessary allegations of dishonesty and deceit against him with respect to his conduct both before and after 29 April 2005. 6 Mr Rambaldi submitted that "[t]here is no reason why Mr Spalla's belated and self-imposed 'litigant in person status' should displace the award of indemnity costs if it [were] otherwise appropriate". Furthermore, Mr Rambaldi argued that there were various other factors that made it appropriate to order indemnity costs "even were Mr. Spalla to be viewed as a litigant in person". According to Mr Rambaldi, these factors were: &#8226; When the case began on 14 March 2006, Mr Spalla had had the benefit of the advice of both senior counsel (Mr Richter QC) and junior counsel in the weeks leading up to the trial. &#8226; Mr Spalla was represented by both a solicitor (Mr Still) and counsel (Mr O'Connor) for the hearings on 14, 15 and 16 March 2006. &#8226; It was Mr Spalla's decision to terminate the retainers of his solicitor and counsel on 17 March 2006. &#8226; Thereafter, Mr Spalla continued to rely on written submissions and outlines earlier prepared by his then retained counsel. 7 Finally, Mr Rambaldi submitted that Mr Spalla's conduct of the case caused "undue delay and needless waste of time", which also led "costs to be unduly incurred". In this regard, Mr Rambaldi asserted that: &#8226; Mr Spalla kept on changing his mind as to whether he would or would not call Mr Hayes QC as a witness. &#8226; Mr Spalla gave no adequate consideration to the obvious and looming problem of legal professional privilege and waiver, which would attend any attempt to call Mr Hayes QC or to tender his various advices. 21 Mr Rambaldi relied on certain observations of Kirby P in Huntsman (at 249-250), in support of his submission that his case for indemnity costs was strengthened by the fact that he had given Mr Spalla early warning that costs would be sought on an indemnity basis if Mr Spalla was unsuccessful. In that case Kirby P stated that such a warning might be most desirable in commercial litigation, because it provided a basis for the court to conclude that the risk had been appreciated by a party who has "pressed on regardless". This may very well be correct where parties are represented. A court may not, however, be as willing to conclude that a self-represented litigant has appreciated the risk and pressed on regardless even though the other party has signalled an intention to seek indemnity costs. Whether a court draws this conclusion in the case of an unrepresented litigant will depend on all the circumstances of the case. I consider it unlikely that Mr Spalla pressed on with the hearing with an appropriate appreciation that his application was likely to fail and that the occasion for the consideration of Mr Rambaldi's application for indemnity costs was likely to arise. I would not, therefore, regard the giving of early notice to Mr Spalla of an indemnity costs application as carrying much weight on this costs application. 22 I have already found that Mr Spalla gave his evidence honestly, and without any intention to mislead the Court. Moreover, although time was lost that should not have been had Mr Spalla been represented, as a self-represented litigant, Mr Spalla presented his case reasonably responsibly. Time was lost through Mr Spalla's lack of legal knowledge and legal skills. These were merely attributes of his self-represented status. As I have previously said, Mr Spalla has been intensely and emotionally involved in this and related proceedings for some years now. He has an emotional investment in this and related litigation. As previously said, on account of this, and his strong commitment to pursuing his grievances in this and related litigation, he has drawn some conclusions that have not proved correct. This was true of his principal application to set aside the settlement, as well as his bias application. 23 Leaving aside the first four days of the hearing, Mr Spalla should be characterised as an unsuccessful self-represented litigant against whom the ordinary costs order should be made. I would not order indemnity costs against him for the whole of the hearing. Further, for much the same reasons, I would not order indemnity costs in respect of his unsuccessful bias application.