Federal Court of Australia

Puopolo v Queensland Electricity Transmission Corporation Limited T/A Powerlink Queensland [2022] FCA 400

ORDERS

THE COURT ORDERS THAT:

1.    The proceeding is dismissed and judgment is entered for the defendant.

2.    The plaintiff pay the defendant’s costs of the proceeding on an indemnity basis.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

DOWNES J:

1    This is an application by the defendant (Powerlink) for summary dismissal of the plaintiff’s claim or, in the alternative, that the plaintiff (Mr Puopolo) provide security for Powerlink’s costs.

2    For the following reasons, the proceeding will be dismissed. It is therefore unnecessary to deal with the application for security for costs.

Relevant Facts

3    Ms Lisa Puopolo, the estranged wife of Mr Puopolo, was the owner of a property at Mt Petrie Road, Mackenzie. For the purposes of this application, I have assumed that she remains the owner. Mr Puopolo, who brings this proceeding, adduced no evidence to show that he has ever had any interest in the property.

4    On 18 February 2005, an easement was taken by Powerlink pursuant to a notice published in the Queensland Government Gazette.

5    On 1 March 2005, Powerlink wrote to Ms Puopolo enclosing a copy of the proclamation and stating that “an easement was resumed over your property for the above transmission line”. A pamphlet relating to statutory compensation was enclosed and Ms Puopolo was advised that a valuer would contact her shortly to discuss compensation.

6    Negotiations then ensued in relation to the amount of that compensation.

7    A deed dated 24 February 2015 was entered between Ms Puopolo, Mr Puopolo and a Brisbane law firm. The deed referred to Ms Puopolo having lodged a claim for compensation on 9 January 2009 and an amended claim for compensation on 4 June 2013, and that Powerlink “have to date made several advances to” Ms Puopolo.

8    The deed defined Compensation Claim as:

[Ms Puopolo] lodged a Claim for Compensation on the 9th January, 2009 and an Amended Claim for Compensation on the 4th June, 2013 with Queensland Electricity Corporation Limited ACN 078 849 233 trading as Powerlink Queensland (Powerlink) the Constructing Authority under Part 4 of the Acquisition of Land Act 1967 (Qld) following the compulsory acquisition by Powerlink of an easement through the Mackenzie Property pursuant to a Notice of Intention to Resume No. 711914752 gazetted on the 18th February, 2005 (Compensation Claim).

(emphasis omitted)

9    The deed referred to Mr Puopolo as being the person who undertook most of the negotiations to date with Powerlink in relation to the Compensation Claim (with the knowledge and consent of Ms Puopolo).

10    The deed also stated that:

For reasons not relevant to this Deed, Lisa does not wish to further pursue the Compensation Claim herself, and has agreed at Enzo's request to allow him to continue the Compensation Claim in her name, subject to the provisions of this Deed and the terms of their agreement.

Lisa and Enzo have reached an agreement between themselves providing for the further conduct of the Compensation Claim by Enzo including, but not limited to, their respective entitlement to any further compensation paid by Powerlink and liability for any costs incurred or which become payable as a consequence of Enzo further pursuing the Compensation Claim (Agreement).

(emphasis omitted)

11    The deed also contained the following clause (with the relevant parts extracted):

2.    Lisa hereby irrevocably appoints and authorises Enzo to:-

2.1. Pursue and continue to pursue the Compensation Claim in her name;

…

2.3. Appear as her authorised representative at any settlement conference and/or mediation or like meeting and/or at any court proceedings;

2.4. Settle the Compensation Claim on terms considered appropriate by him in his absolute and unfettered discretion;

and will execute a suitable Enduring Power of Attorney appointing Enzo to so represent and act on her behalf in continuing with and resolving the Compensation Claim.

12    The enduring power of attorney was not in evidence but I have proceeded on the basis that one was executed which appointed Mr Puopolo in the manner described in the deed.

13    On 16 December 2016, an agreement was executed to which Powerlink and Ms Puopolo were parties. Mr Puopolo executed the agreement for and on behalf of Ms Puopolo as her attorney. Pursuant to that agreement, Powerlink agreed to pay compensation to Ms Puopolo in the amount of $890,000 (of which $560,000 had been paid in advance). The agreement also contained a release in the following terms:

(a)    Subject to the payment of the Compensation Amount Payable, the Claimant:

(i)    releases Powerlink from any further claim for compensation under the provisions of the [Acquisition of Land Act 1967 (Qld)] arising from the taking of the Easement; and

(ii)    accepts the Compensation Amount provided for in this Agreement as full and final compensation for its entitlement to compensation under and in accordance with the provisions of the [Acquisition of Land Act 1967 (Qld)].

(b)    The Claimant acknowledges that Powerlink may rely on this clause as a bar to any further claim for compensation in any future proceedings in relation to compensation payable for the taking of the Easement.

14    Mr and Ms Puopolo commenced a proceeding against Powerlink in the Supreme Court of Queensland on 23 March 2020 which appeared to express dissatisfaction with the manner in which the compensation with Powerlink had been negotiated and agreed. It provided:

APPLICATION RELATING TO STATEMENT OF REASONS

Application in relation to the decision of the respondent that, "Powerlink Queensland refused to enact and/or failed to respond to requests to enact section 23 of the Acquisition of Land Act (1967) (Act), where a claimant has the right to request all settlement offers and/or estimates from a Construction Authority as an advance against compensation"

The applicant is aggrieved by the decision because –

…

2.    The funding and execution of the claimant's claim for compensation was damaged;

a.    Litigation funding was limited to the cash at bank the claimant/landowner had on hand and/or defendant chose to release to the claimant.

b.    Funding for other projects belonging to claimant was damaged; economic resources had to be directed to a now long-standing dispute with the defendant.

c.    Discord within the claimant's family was created; unwelcomed and unsolicited 'economic stress' experienced by claimant/landowner as the defendant dispossessed not only Land but monetary rights also.

…

(emphasis original)

15    This application was treated as being, in effect, an application for judicial review under either ss 20 or 22 of the Judicial Review Act 1991 (Qld) and an application for reasons under s 38 of that Act: see Puopolo & Puopolo v Powerlink Queensland ACN 078 849 233 [2020] QSC 150 at [16].

16    Following a hearing on 18 May 2020, their application was dismissed on 2 June 2020. In the reasons for that decision, A. Lyons SJA stated that:

[5]    On 16 December 2016, the first applicant signed a Deed of Settlement, as attorney for the second applicant (claimant), with the respondent. The total compensation amount was $890,000.00. The Deed acknowledged an advance of $560,000 comprising the two amounts of $310,000.00 and $250,000.00 with the final payment being the amount of $330,000.00. Clause 3 of that Deed indicated that subject to the payment of the compensation amount, the claimant released Powerlink from any further claim for compensation under the provisions of the AL Act and accepted the compensation amount as full and final compensation for its entitlement under and in accordance with provisions of the AL Act. The claimant also acknowledged that Powerlink could rely on the clause as a bar to any further claim for compensation in future proceedings.

[6]    The crux of the dispute between the parties relates to the amount of compensation to be paid to the applicants based on the highest and best use of the land at the date of resumption…

…

[9]    Powerlink's position was that the amount of $560,000.00 was the estimate of compensation for the loss and the value of the land. That compensation was assessed on the basis that the highest and best use of the land was the 13 lot residential subdivision. Essentially the other amounts claimed were not considered to be compensable.

[10]    Accordingly, in order to settle the compensation claim, an offer of $890,000.00 in total was made. The history of the dispute and the terms of the offer are set out in a letter from the solicitors for Powerlink to the solicitors for the applicants dated 29 November 2016. Reference was also made to an earlier without prejudice offer of $1.6 million made by Powerlink on 20 May 2013, which was rejected by the applicants. Powerlink subsequently obtained additional expert advice and it was made clear to the applicants that Powerlink could not support an offer of $1.6 million.

[11]    That letter of 29 November 2016 provided a detailed explanation of the history of the dispute and the basis for the offer to settle. In response the solicitors for the applicants requested by email on 15 December 2016 that the final amount of $330,000.00 which was being proposed be paid “as an advance (as opposed to in full and final satisfaction of the claim)”. The Compensation Deed, which made it clear that the $330,000.00 was a final payment, was then signed on 16 December 2016.

…

[15]    The respondent filed an application on 9 April 2020 seeking that the applicants' application be dismissed pursuant to s 48 of the Judicial Review Act 1991 (Qld) (JR Act) on the basis that the purpose of the application was to re-agitate financial matters between the parties which were in fact the subject of completed statutory processes under the AL Act.

…

[27]    As set out above at [11], on 16 December 2016, the first applicant signed the Deed of Settlement, as attorney for the second applicant (claimant), with the respondent. The total compensation amount was, as foreshadowed, $890,000.00 (less the advances).

…

[62]    The material before me indicates that the applicants were legally represented and participated in discussions in relation to the offer which was made by the respondent. The correspondence which is in evidence and indeed which is exhibited to the various affidavits of the first applicant sets out that negotiation process in some detail and significantly the matters which the applicants took into account in coming to a decision. The signed Deed of Settlement indicates that the applicants accepted the offer when the first applicant signed on his behalf and on behalf of the second applicant on 16 December 2016. …

[63]    Furthermore, the land acquisition matters about which the applicants complain were clearly contractually resolved between the applicants and the respondent when the Deed of Settlement was executed in December 2016 for an agreed sum. …

(footnotes omitted)

17    After their application was dismissed, Mr and Ms Puopolo were ordered to pay Powerlink’s costs of that Supreme Court proceeding. Those costs were assessed by a deputy registrar of the Supreme Court and a certificate issued for $16,530.71 but these costs have not been paid, despite demand.

18    Mr and Ms Puopolo then commenced a second proceeding against Powerlink in the Supreme Court of Queensland on 11 August 2020. Their application stated the following:

1.    The respondent gave no reasons for their decision, despite the applicant providing ample reasons as to why the applicant was under duress.

2.    The way the respondents "acquired" Easement G at 457 Mt Petrie Rd Mackenzie, did not obey the rules of natural justice, common law principles and legislation, for example:

a.    A breach to the Privacy Act 1988 (Cth) prior to acquisition,

b.    No offer of compensation prior to implementing the Acquisition of Land Act 1967,

c.    Common law principles including but not limited the tort of conversion once acquired.

3.    The way the respondents have "valued compensation" of Easement G of 457 Mt Petrie Road Mackenzie, violate common law principals and may have even triggered the criminal code for example:

a.    Spencer v's the Commonwealth of Australia [1907]

b.    the San Sebastian/Pointe Gourde principal

i.    Housing Commission of NSW v San Sebastian Pty Ltd [1978]

ii.    Pointe Gourde Quarrying and Transport Company v Sub-Intent of Crown Lands [1947]

c.    enacting section 93 of the Criminal Code, and potentially others.

4.    From the outset the actions, opinions and decisions of the Respondent appear deliberate to cause duress to the applicants, including but not limited to this application to obtain a statement of reasons for the respondent’s decision.

5.    The applicant has provided to the respondent, sufficient evidence, and information for the respondent to accept the applicant has been under economic duress since dosposseion [sic].

6.    Almost four years ago, the respondent knowing the applicant was under duress, prepared a document for the applicant to sign, as the only way to receive a part of their compensation.

7.    The applicants have made several other endeavors [sic] with Queensland and Australian authorities to seek remedy of the duress created by the respondents.

19    The application filed on 11 August 2020 was dismissed by Flanagan J, with an order that Mr and Ms Puopolo pay Powerlink’s costs on the indemnity basis. The reasons for that decision were not in evidence or otherwise provided.

20    Those costs were assessed by a deputy registrar of the Supreme Court and a certificate issued for $15,658.73 but these costs have not been paid, despite demand.

21    On 30 November 2021, Mr Puopolo (alone) filed an originating application in this Court which was accepted for filing on 6 December 2021. The application was expressed to have been brought under s 1350 Corporations Act 2000 [sic]. The following ‘relief’ is claimed:

1.    The defendant wrongly used or ignored state and federal legislation, for their own financial improvement.

2.    The defendant ignores the plaintiffs’ constitutional rights and civil liberties, without care or consideration of the damages caused to the plaintiff, his estranged wife and their five children.

3.    The plaintiff claims the defendant must accept the plaintiffs ‘without prejudice’ settlement offer dated 10th of August 2021 (EMP05), in the first instance (date adjusted).

a.    The defendant will then propose a long-term lease to the plaintiff within one month, the lease proposal will include the usual time and rental considerations. It will also include an area to be used exclusively by the plaintiff, the proposed area will be no less than 10% of the existing area.

4.    If the respondent has not paid some money to the plaintiff before our first court appearance, then the respondent decision makers do not deserve the right to oversee an Australian company.

5.    If the respondent did pay money to the plaintiff before our first court appearance, then the respondent's decision makers require clear direction on what is considered acceptable behaviour for similar matters.

22    An affidavit of Mr Puopolo was filed with the originating application. Although it was not read on the application, both parties referred to it during the course of their submissions. This affidavit referred to Powerlink having breached the Privacy Act 1988 (Cth) “to devalue our land prior to acquisition” and that this was done “to ensure the targeted land is of little use [to] anyone but themselves”. The affidavit also exhibited a decision arising from complaints made by Mr and Ms Puopolo to the Office of the Australian Information Commissioner pursuant to s 36 of the Privacy Act. That decision, which was communicated to Mr Puopolo on 22 July 2019, advised that the complaints would not be investigated on the grounds that it had been more than 12 months since Mr Puopolo became aware of the matter and that the file was now closed.

23    Powerlink applies for an order that this proceeding be summarily dismissed. In response to that application, Mr Puopolo filed a second affidavit of himself which annexed correspondence. He also filed submissions which proposed that the following orders be made and which appeared intended to replace the orders sought in the originating application:

1.    The Respondent's interlocutory application to be dismissed in its entirety.

2.    The Respondent is to regard item 3 and 3 a. of the originating application as an order sought by the Applicant, under s1350 of the Corporations Act 2001.

3.    The Applicant commenced proceedings in compliance with section 1350(2) of the Corporations Act 2001.

4.    The Respondent is to propose an on "Just Terms" compensation package for the "acquisition of property" for the easement taken on the 18th of February 2005 to the Applicant on or before the 16th of March 2022

a.    As per section 1350(3) of the Corporations Act 2001, the Respondent's post acquisition payments for this same event or transaction is limited to:

i.    the compensation agreement dated 16th of December 2022

ii.    The final costs of BS3226/20 (not QSC 150) which was first heard by Justice Ryan, then heard by Justice Lyon

iii.    The final costs of BS8731/20 heard by Justice Flanagan

b.    The Respondent is to bear in mind "Just Terms" and "acquisition of property" has the same meaning as paragraph 51(xxxi) of the constitution and the meaning of property is to include land.

5.    The Respondent is to forward to the Applicant initial payments of the proposed compensation package within 7 calendar days of the "Just Terms - Compensation Package" being presented to the Applicant.

6.    The Respondent pay the costs of the Applicant.

24    Mr Puopolo was self-represented at the hearing of the application but stated that he had seen “many solicitors and barristers” and that he had taken legal advice. It was also submitted by Mr Puopolo that the privacy complaint was to be taken into consideration but did not identify any relief which would be sought in connection with that complaint.

25    In essence, then, the relief being sought by Mr Puopolo in this Court is that Powerlink should be ordered to pay compensation to him pursuant to s 1350 Corporations Act 2001 (Cth).

Relevant principles

26    Section 31A(2) of the Federal Court of Australia Act 1976 (Cth) provides the power to grant summary judgment to a party defending a claim:

31A     Summary judgment

…

(2)     The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)     the first party is defending the proceeding or that part of the proceeding; and

(b)     the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

(3)     For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

(a)     hopeless; or

(b)     bound to fail;

for it to have no reasonable prospect of success.

(4)     This section does not limit any powers that the Court has apart from this section.

…

27    In Spencer v The Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 at [51]–[60] (per Hayne, Crennan, Kiefel (as her Honour then was) and Bell JJ), it was stated that the central idea about which s 31A pivots is “no reasonable prospect” (emphasis in judgment) and that a proceeding may be found to have no reasonable prospect of successful prosecution even if it cannot be said that it is “hopeless” or “bound to fail”. The relevant inquiry is therefore whether there is a “reasonable” prospect of prosecuting the proceeding, not an inquiry directed to whether a certain or concluded determination could be made that the proceeding would necessarily fail. It was also observed that the power to dismiss an action is not to be exercised lightly.

28    Rule 26.01 of the Federal Court Rules 2011 (Cth) provides:

26.01     Summary judgment

(1)     A party may apply to the Court for an order that judgment be given against another party because:

(a)     the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or

(b)     the proceeding is frivolous or vexatious; or

(c)     no reasonable cause of action is disclosed; or

(d)     the proceeding is an abuse of the process of the Court; or

(e)     the respondent has no reasonable prospect of successfully defending the proceeding or part of the proceeding.

Consideration

Relief sought in originating application

29    By his originating application, Mr Puopolo makes assertions about the conduct of Powerlink (paragraphs 1 and 2) and expresses opinion about Powerlink depending upon whether it pays money before “our first court appearance” (paragraphs 4 and 5). In truth, these are not claims for relief. For this reason, Mr Puopolo has no reasonable prospect of successfully prosecuting these parts of the proceeding.

30    Paragraph 3 of the originating application appears to seek an injunction to the effect that Powerlink be required to accept Mr Puopolo’s without prejudice settlement offer dated 10 August 2021. This offer was contained in a letter which was annexure EMP05 to an affidavit of Mr Puopolo filed with the originating application.

31    Annexure EMP05 was removed from the court file by order dated 9 March 2022. That is because it was common ground that EMP05 was a document that had been prepared in connection with an attempt to negotiate a settlement of a dispute. The general prohibition in s 131(1)(b) Evidence Act 1995 (Cth) therefore applied.

32    Powerlink objected to evidence of the offer being adduced, and indicated that it would not consent to that evidence being adduced at trial. Mr Puopolo did not submit that any of the exceptions in s 131(2) applied or that he would be able to demonstrate that an exception applies at trial.

33    Assuming that the relief in paragraph 3 of the originating application is still being sought, Mr Puopolo has no reasonable prospect of successfully prosecuting this part of the proceeding. That is because, for the reasons explained above, Mr Puopolo has not demonstrated that he has any reasonable prospect of being able to adduce evidence of his without prejudice offer at trial. Nor did he identify any cause of action which would entitle him to this form of order.

Relief sought pursuant to s 1350 Corporations Act

34    Having regard to the application and the submissions filed by Mr Puopolo which propose a different form of orders to those contained in the originating application, this proceeding appears to be brought pursuant to s 1350 Corporations Act.

35    Section 1350 provides that:

(1)     If:

(a)    apart from this section, the operation of this Act would result in the acquisition of property from a person otherwise than on just terms; and

(b)    the acquisition would be invalid because of paragraph 51(xxxi) of the Constitution;

the person who acquires the property is liable to pay compensation of a reasonable amount to the person from whom the property is acquired in respect of the acquisition.

(2)     If the 2 people do not agree on the amount of the compensation, the person to whom compensation is payable may institute proceedings in the Court for the recovery of such reasonable amount as the court determines from the other person.

Standing to bring this proceeding

36    There is no evidence that Mr Puopolo has ever had any form of interest in the property at Mt Petrie, Mackenzie. It follows that Mr Puopolo cannot be a person from whom property was acquired within the meaning of s 1350. The relevant acquisition was from Ms Puopolo pursuant to the Acquisition of Land Act 1967 (Qld).

37    Pursuant to his agreement with Ms Puopolo (being the only agreement in evidence), Mr Puopolo is authorised to pursue and continue to pursue the Compensation Claim (as defined) in her name. That is, he is authorised to do certain things in the name of Ms Puopolo, not in his own right.

38    The basis upon which Mr Puopolo will be able to demonstrate at trial that he is entitled to relief in relation to a claim for compensation for the historical resumption of land in which he had no interest was not apparent from the evidence or otherwise explained. Based on the undisputed facts, it does not appear to exist. Mr Puopolo therefore has no reasonable prospect of successfully prosecuting this proceeding.

No acquisition of property within s 1350

39    Section 1350 commences with the words, “If apart from this section, the operation of this Act would result in the acquisition of property from a person…” (emphasis added).

40    The resumption of part of the land in question in 2005 occurred pursuant to the Acquisition of Land Act. It was not the result of the operation of the Corporations Act. The claim will necessarily fail at trial because, based on the undisputed facts and the application of the unambiguous words of s 1350(1), s 1350 does not apply. For this reason, Mr Puopolo has no reasonable prospect of successfully prosecuting this proceeding. The claim is misconceived and doomed to fail.

Abuse of process

41    Abuse of process is capable of application in any circumstances in which the use of a court’s procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. Making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel: see Tomlinson v Ramsey Food Processing Pty Limited (2015) 256 CLR 507; [2015] HCA 28 at [25] – [26].

42    Whether conduct rises to the level of an abuse of the processes of the court is a determination that requires consideration of all the circumstances. Those circumstances include the procedural law administered by the court whose processes are engaged (which, in the case of the Federal Court, requires regard to be had to s 37M of the Federal Court of Australia Act) and that the timely, cost effective and efficient conduct of modern civil litigation takes into account wider public interests than those of the parties to the dispute: see UBS AG v Tyne as trustee of the Argot Trust (2018) 265 CLR 77; [2018] HCA 45 (Kiefel CJ, Bell and Keane JJ) at [7], [34] and [38].

43    In this case and for the following reasons, the bringing of proceedings in the Federal Court by Mr Puopolo, even if brought on behalf of Ms Puopolo, is an abuse of the processes of this Court.

44    By this proceeding, Mr Puopolo seeks to reagitate the same or similar fundamental dispute that lay behind the two previous proceedings in the Supreme Court – that is, a dispute as to the amount of compensation to be paid by Powerlink for the resumption of his former wife’s land in 2005. This was described in the reasons of A. Lyons SJA in the first Supreme Court proceeding as being the “crux of the dispute between the parties”: Puopolo & Puopolo v Powerlink Queensland at [6].

45    Having failed in the Supreme Court (twice), Mr Puopolo crosses the road to the Federal Court and seeks to enliven the same dispute with Powerlink, but one which is misconceived for the reasons explained above. For these reasons, it is a waste of this Court’s resources and contrary to the wider public interest to permit this case to advance any further.

46    In addition, the claim premised on s 1350 Corporations Act is so relevant to the subject matter of the first Supreme Court proceeding that it ought reasonably to have been made or raised for determination in that proceeding. This provides further support for the conclusion that this proceeding is an abuse of process: see Tomlinson at [26].

47    Finally, Powerlink has the benefit of a signed agreement which contains a release clause and it has been put to the expense of successfully defending two previous attempts to unscramble the deal. If this case was permitted to continue, Powerlink would be required to expend additional money and time on a third round of litigation about compensation for a resumption of land which occurred some 17 years ago in circumstances where Mr and Ms Puopolo have failed or refused to pay outstanding costs orders made in its favour. To permit this case to continue would therefore be unjustifiably oppressive to Powerlink, and this provides an additional reason for the conclusion that this proceeding is an abuse of process: see Tomlinson at [26].

Costs

48    As judgment will be entered in its favour, Powerlink should receive its costs. The only issue which remains is whether those costs should be awarded on a party and party basis or, as is sought by Powerlink, on an indemnity basis.

49    In Wills v Chief Executive Officer of the Australian Skills Quality Authority (Costs) [2022] FCAFC 43, the Full Court (Logan, Griffiths and Perry JJ) stated at [20]:

The Court’s discretion to award costs is wide. That discretion includes the power to order that costs be paid on an indemnity, rather than a party and party, basis: Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 (Colgate-Palmolive) at 232–233; NMFM Property Pty Ltd v Citibank Ltd (No 2) (Court’s “NMFM” Judgment No 11) [2001] FCA 480; (2001) 109 FCR 77 at [53]. As Sheppard J explained in Colgate-Palmolive at 233, there should be “some special or unusual feature in the case to justify the Court in departing from the ordinary practice” of awarding costs on a party and party basis.

(emphasis original)

50    Powerlink submits that this case has a special or unusual feature which justifies indemnity costs, namely:

(a)    Mr Puopolo bringing these proceedings in this new jurisdiction, clearly alive to the Supreme Court of Queensland's previous (two) determinations of the same essential matters and prior indemnity costs order;

(b)    Mr Puopolo commencing these proceedings having explicitly refused to satisfy the existing costs order debts owed to Powerlink;

(c)    the lack of any reasonably arguable cause of action or actionable relief sought as part of Mr Puopolo’s application.

51    I agree that these matters, taken together, have been established in this case and that they constitute a special or unusual feature which justify a departure from the ordinary practice of awarding costs on a party and party basis. Further, the finding in these reasons that this proceeding is an abuse of process fortifies the conclusion that costs should be paid on an indemnity basis.

52    Taking into account the matters raised above, I am satisfied that the circumstances of this case justify an award of indemnity costs.

Conclusion

53    For these reasons, Mr Puopolo’s claim will be dismissed and judgment will be entered for Powerlink. Mr Puopolo will be ordered to pay Powerlink’s costs of this proceeding on an indemnity basis.

Associate:

Dated:    14 April 2022