Case: Spalla v St George Motor Finance Ltd (No 7) [2006] FCA 1177
Outcome: referred to
On 12 September 2006, the Court refused the applicant's motion and otherwise dismissed the proceeding, which sought to set aside a settlement entered into by the respondents. When the Court delivered its reasons for judgment, it gave the parties an opportunity to make written submissions on costs: see Spalla v St George Motor Finance Ltd (No 7) [2006] FCA 1177. 2 The first, second and seventh respondents ("the St George parties"), the third to sixth respondents ("the Deloitte parties") and the eighth respondent (Mr Rambaldi) filed submissions on costs in late September 2006. The applicant (Mr Spalla) stated his position on costs in a letter addressed to my associate dated 17 October 2006. 3 In this letter, Mr Spalla said: "I wish to reply to the request that a response be provided in relation to costs of this proceeding. On the day that Her Honour delivered Judgement, I understood that a date in October or November was indicated by her Honour as a day to hear oral submissions on costs. I regret my misunderstanding has caused any inconvenience. It is my submission, with respect that any costs award should be on the normal basis of party party. I respectfully submit that I in no way abused the Court process and further submit that any extended trial time was due to the fact that I was denied the opportunity to secure the representation of properly briefed Senior Counsel, who unfortunately fell seriously ill on the eve of the commencement of the trial. As the Respondents have sought to claim solicitor client or indemnity costs against me because of the predicament I faced in having to conduct my own case due to the illness of my Senior Counsel, is, I respectfully submit, grossly unfair and unwarranted. I further submit that there is no valid argument that I should be liable for any Order that costs be paid forthwith. As I have lodged an Appeal against Her Honour's decision, I further submit that any consideration of costs should be deferred pending the outcome of that Appeal. The Respondents in my respectful submission will not suffer any prejudice if any consideration of costs is deferred until after the Appeal is determined. At the very least I submit that any costs be taxed on a party party basis and made payable after the Appeal, if it is unsuccessful. As an unrepresented litigant I am unable to address the legal submissions made by the Respondents in relation to precedent." 4 Mr Rambaldi seeks an order that the costs of the hearing, including reserved costs, be paid on an indemnity basis. He acknowledged that, generally speaking, courts are reluctant to order indemnity costs against a self-represented litigant but submitted that, in this case, there were "strong grounds" for an award of indemnity costs against Mr Spalla. First, he submitted that Mr Spalla's allegation that Mr Rambaldi engaged in dishonest and deceitful behaviour depended on (a) the proper construction of the Litigation Funding Agreement; (b) the proper construction of the 29 April 2005 Deed of Settlement; (c) the post 29 April 2005 conduct of Mr Rambaldi; and (d) the solvency of the ninth respondent ("Irlmond"). He submitted that Mr Spalla's contentions with respect to these matters were not just fundamentally flawed, they were manifestly wrong. In relation to Mr Spalla's failed bias application, Mr Rambaldi submitted that it had "proceeded from a misunderstanding of the role of the trial judge", ought never to have been brought, and had been doomed to fail.