Federal Court of Australia

Ivory v Howard [2024] FCA 1416

ORDERS

THE COURT ORDERS THAT:

1.    The respondent pay to the applicant the sum of $75,000.00 within 28 days of the date of these Orders.

2.    Pursuant to r 39.06 of the Federal Court Rules 2011 (Cth), the respondent pay the applicant interest on the judgment sum, calculated at a rate of 5% for the period from 21 September 2023 until the date of judgment.

3.    Pursuant to s 40(2) of the Defamation Act 2005 (Qld), the respondent pay the applicant’s costs of the proceeding on the indemnity basis.

4.    Pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth), until further order of the Court:

(a)    the respondent is permanently restrained from publishing a matter in any form to the effect that the applicant is:

(i)    guilty of an offence;

(ii)    a violent person;

(iii)    a liar;

(iv)    a drug user;

(v)    a bully;

(vi)    pathetic; or

(vii)    engaged in illegal activities, and

(b)    the respondent must, within 7 days, permanently remove or cause to be removed any publication by the respondent of a matter in any form to the effect that the applicant is:

(i)    guilty of an offence;

(ii)    a violent person;

(iii)    a liar;

(iv)    a drug user;

(v)    a bully;

(vi)    pathetic; or

(vii)    engaged in illegal activities.

5.    Pursuant to r 40.02(b) of the Federal Court Rules 2011 (Cth), costs be awarded in a lump sum.

6.    The matter be referred to a Registrar for the determination of an appropriate lump sum.

7.    Pursuant to r 39.34 of the Federal Court Rules 2011 (Cth), these Orders are authenticated and are to be entered forthwith.

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

REASONS FOR JUDGMENT

SARAH C DERRINGTON J:

Introduction

1    By an originating application filed on 10 November 2023, the applicant, Ms Sheree Ivory, sought redress, including an award of general damages and aggravated damages, for the damage to her reputation caused by three Facebook posts by Ms Susan Howard, the respondent, which alleged, inter alia, serious criminal activity.

2    Judgment was entered against Ms Howard on 23 May 2024, with damages to be assessed, pursuant to r 5.23(2)(d) of the Federal Court Rules 2011 (Cth). This is an application for the assessment of damages consequent upon that judgment.

Procedural history

The application for assessment of damages

3    At the time when judgment was entered, Ms Howard had not filed a Notice of Address for Service. However, upon engaging a solicitor, a Notice of Address for Service was filed on 19 July 2024. By an interlocutory application filed on 22 July 2024, Ms Howard sought, in substance, a period of time to file any affidavit material in response to Ms Ivory’s affidavit material in support of the relief sought, and that the hearing for assessment of damages be adjourned. By Order dated 23 July 2024, a timetable for the filing of affidavit material and submissions was set. The hearing for the assessment of damages, initially listed for 6 August 2024, was adjourned to a date not before 23 September 2024.

4    On 22 October 2024, Ms Howard’s solicitor filed a Notice of Ceasing to Act and Ms Howard filed a new Notice of Address for Service on 21 October 2024. Since that date, Ms Howard has been self-represented.

5    Consequent upon the Order dated 23 July 2024, by email to the parties on 23 July 2024, the hearing of this application was re-listed for 25 November 2024. On 8 October 2024, it was again re-listed to 15 November 2024, to which both parties consented. Ms Ivory’s material was filed late for reasons that were explained in the affidavit of Mr William Michael Elliot Finch filed on 11 November 2024 (First Finch Affidavit). Because Ms Howard objected to any extension of time sought by Ms Ivory for the filing of her material, Ms Ivory requested a case management hearing prior to the hearing on 15 November 2024. Although Ms Howard was given notice of that case management hearing at which an extension of time for the filing of Ms Ivory’s material was sought (and was provided access to a Microsoft Teams link and direct telephone number to participate in the hearing), she did not appear. The extension sought by Ms Ivory was granted. At the hearing, I accepted that the delay was caused by a genuine mistake on the part of Ms Ivory’s legal advisors consequent upon the illness of another lawyer in their office. Ms Ivory herself was not at fault.

6    On 14 November 2024, Ms Howard provided a medical certificate (covering 14-15 November 2024 only) in support of her request for an adjournment of the hearing listed for 15 November 2024. Ms Ivory ultimately consented to that adjournment, and, on 15 November 2024, the Court ordered that the matter be adjourned to a date to be advised administratively (so as to find a convenient date) and that Ms Howard pay the costs thrown away by the adjournment.

7    The parties were advised by email that the hearing had been re-listed for 22 November 2024. On 20 November 2024, Ms Howard was provided with a Microsoft Teams link and a direct telephone phone number to facilitate her remote appearance, should she be unable, or unwilling, to attend Court in person.

8    By email to the Queensland Registry on 21 November 2024, Ms Howard expressed her “disappointment” in the matter being heard on 22 November 2024 and indicated that she wished for it to be adjourned until “after Mr. Gawleys [sic] case” (being the related proceeding QUD 496 of 2023), declaring “I will no longer put up with this bullying from the court”.

9    Ms Howard did not appear when the matter was called on for hearing on the morning of 22 November 2024. This was consistent with her lack of engagement with the Court’s processes in failing to file a Defence, failing to file responsive material following her own application for time to do so, and failing to participate in case management. The hearing, therefore, proceeded in her absence. It may be that Ms Howard misunderstood the purpose of the hearing. The more likely inference is that Ms Howard has never had any intention of engaging in the proceeding. As deposed to in the affidavit of Mr Finch filed on 21 November 2024 (Second Finch Affidavit) and exhibited thereto, Ms Howard, particularly during the evening of 14 November 2024, posted a number of memes, photos and text posts on her Facebook page directed at Ms Ivory and her solicitor. They included posts that read, “I will keep going until the bully sits down and shuts … up”, “[h]er big cost Sydney solicitors would be having a melt down..right about now”, “[i]magine every time you post a bitch and her lawyer thinks it’s right now..let’s all have some fun with that”, and “[c]ome on Sheree….where’s ya lawyer???..has he gone to bed???”. The “fun” comprised posting numerous photos of Ms Howard taken on various dates in the past, apparently to make fun of the reasonable response by Ms Ivory’s solicitor to some evidence of her illness. By email to the Queensland Registry on 14 November 2024, Ms Howard had described her illness as tonsilitis and throat blisters, which prevented her from talking. She had also, however, posted a video to Facebook that same day in which she appeared to be speaking without difficulty. The point to her Facebook posts was apparently to point out that the posting of material on a particular date does not establish the date on which that material was created.

10    The posts were offensive, sarcastic and childish and came very close to showing contempt for the Court and its processes. I am fortified in my finding that Ms Howard had no intention of engaging in the proceeding by her Facebook post on 21 November 2024, which came even closer to contempt of Court. As deposed to in the affidavit of Ms Ivory filed on 21 November 2024 (Second Ivory Affidavit) and exhibited thereto, the post read:

Australian courts have come down to helping crack heads stalk..prove me wrong

Material before the Court

11    Ms Ivory relied on the following material in support of the application:

(a)    the affidavit of Mr Dennis John Hurle filed on 31 October 2024 (Hurle Affidavit);

(b)    the affidavit of Ms Penelope Ann Taylor filed on 6 November 2024 (Taylor Affidavit);

(c)    the affidavit of Ms Ivory filed on 6 November 2024 (First Ivory Affidavit);

(d)    the Second Finch Affidavit; and

(e)    the Second Ivory Affidavit.

12    Ms Ivory also filed written submissions. Ms Howard did not file any material.

Relevant Principles

Damages for defamation

13    The principles applicable to an award of damages for defamation are well settled. As submitted by Ms Ivory, such an award serves three purposes. First, they are consolation for the personal distress and hurt caused to the applicant by the publication; secondly, reparation for the harm done to the applicant’s personal and (if relevant) business reputation; and thirdly, vindication of the applicant’s reputation: Carson v John Fairfax and Sons Ltd [1993] HCA 31; 178 CLR 44 at 60 per Mason CJ, Deane, Dawson and Gaudron JJ.

14    As the proceeding is brought and heard in Queensland, the Defamation Act 2005 (Qld) applies. Section 34 of that Act states that, in determining the amount of damages to be awarded, the Court is to ensure that there is “an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded”.

15    Damages referable to consolation and reparation focus on the wrong done to the applicant and are often considered together: Carson at 60-61. In that case, McHugh J observed, at 104-105, that the damage which a defamation produces is “ordinarily psychological rather than material”:

It affects the feelings, sense of security, sense of esteem and self perceptions of the person defamed. As a natural consequence, a defamation excites the anger and resentment of the victim and often enough generates a desire for retribution.

16    Compensation for personal distress and hurt is “a solatium rather than a monetary recompense for harm measurable in money”: Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; 117 CLR 118 at 150 per Windeyer J. The vindication component of damages focusses on the attitude not of the applicant, but of others, and the sum awarded for it “must be at least the minimum necessary to signal to the public the vindication of the [their] reputation”: Carson at 61.

17    As was explained by the Queensland Court of Appeal in Roberts v Prendergast [2014] QCA 047; 1 Qd R 357 at [31]-[32] (per Gotterson JA, de Jersey CJ and Fraser JA agreeing), it is also appropriate to have regard to the “grapevine effect” of repeated publication, being “circumstances of repetition of the defamatory statement by the person who published it originally or by those to whom that person has published it, to others who themselves repeat it”.

18    In assessing damages, the Court may take into account the gravity of the imputations, the mode and extent of the publication, the position and reputation of the plaintiff, the extent of the injury to the plaintiff’s reputation and feelings, the fact that the defamatory statement was never retracted and that no apology was offered: see Ali v Nationwide News Pty Ltd [2008] NSWCA 183 at [76] (Tobias and McColl JJA).

Aggravated damages

19    As is well established, damages may be increased if there is “a lack of bona fides in the defendant’s conduct or it is improper or unjustifiable”: Triggell v Pheeney [1951] HCA 23; 82 CLR 497 at 514 per Dixon, Williams, Webb and Kitto JJ. In Costello v Random House Australia Pty Ltd (1999) 137 ACTR 1; 149 FLR 367 at [411] per Higgins J, the Court explained:

The concept of “aggravated” damages is not, whether calculated separately or not, a different “head” of damage. It focuses on the circumstances of the wrongdoing which have made the impact of it worse for the plaintiff. It is not to go beyond compensation for the aggravation of the harm to repute or feelings. It is not a means to punish the plaintiff.

20    As Applegarth J discussed in Cerutti v Crestside Pty Ltd [2014] QCA 33; 1 Qd R 89 at [38],

… damages may be increased by an unjustifiable failure to apologise or retract, by unjustifiable persistence in making untrue allegations or by the conduct of the defence proceedings in a manner which is unjustifiable, improper or lacking in bona fides.

21    I observe that it is the normal practice in many cases not to break down an award of damages for defamation into a component for ordinary damages and a component for aggravated damages: Nine Network Australia Pty Ltd v Wagner [2020] QCA 221; 6 QR 64 at [19] per Morrison JA, Mullins JA, Jackson J. I find that it is appropriate to adopt that practice in this case.

The matters complained of

22    Ms Ivory complains about three matters, all of which were published by Ms Howard using a Facebook account operated by her under the account name “Flame Howard”.

23    The first matter arose on or about 17 November 2022, shortly after Ms Ivory unsuccessfully stood for election as a committee member of the Central Queensland Drag Racing Association Inc. As at 31 October 2024, the Association had 184 paid members (First Ivory Affidavit at [18]). Ms Howard posted a comment on Ms Ivory’s Facebook post, which carried the imputations that she was a violent person who had made threats of violence against committee members and had engaged in underhanded conduct within the Association. Ms Ivory’s Facebook page was public when the post was published. It was therefore accessible by the general public, as well as by her 523 Facebook friends. I infer from the 43 comments on the post and the 22 emoticon reactions that a significantly larger number of people would in fact have seen the post and Ms Howard’s comment, than simply those who reacted to or commented on the post.

24    The second matter arose on or about 13 July 2023, when Ms Howard published on her own Facebook page) a comment on a post by Ms Ivory on 12 July 2023, on a Facebook Group page entitled “Friends of Benaraby Dragway” (of which Ms Ivory is the administrator) (First Ivory Affidavit at [13]). The words of Ms Howard’s comment carried the imputations that Ms Ivory was a liar and engages in illicit use of marijuana, including whilst on or at the racetrack. At the time of that post, the Facebook Group was a public group with approximately 1,400 members. By 9 November 2023, the Facebook Group membership numbers had grown to 1,757 members and remained freely accessible by members of the public. The post attracted 60 comments, 27 emoticon reactions, and two shares. It remains available on the Facebook Group page, which now has 3,400 members (First Ivory Affidavit at [16]).

25    The third matter arose on or about 21 February 2023 when Ms Howard shared and provided endorsing commentary on a post by a fellow member of the Facebook Group which was capable of identifying Ms Ivory, and which carried the imputations that Ms Ivory was a bully, pathetic, was guilty of criminal damage to a racetrack and, together with other former volunteers and committee members of the Association, had been engaged in illegal activities, including money laundering, drug use, involvement in outlawed motorcycle gangs, attempted theft, and thievery. Ms Howard’s Facebook page is public. Ms Howard’s sharing of the post received 5 emoticon reactions and 14 comments.

The impact of the matters complained of

26    Ms Ivory deposed to being an independent IT consultant, currently studying to become a mental health counsellor, a mother of three children, a bus driver, and an avid enthusiast for motor drag racing (First Ivory Affidavit at [4]). She has been a member of the Association for about nine years and been a volunteer for various roles within the Association (First Ivory Affidavit at [5]-[6]). From about 2020 to the date of the First Ivory Affidavit, Ms Ivory deposed to volunteering at least 3-5 days a month at the Benaraby Dragway and for the Association, except for a period in 2023 when she was banned from the Benaraby Dragway (First Ivory Affidavit at [8]). Ms Ivory also deposed to the nature of the community surrounding the Association, stating that it “is one where the members who attend the events frequently become well known to each other” (First Ivory Affidavit at [20]). She said, “[t]here is … a community feeling for those who take part in events … each person is a part of a distinct community … focused on the [Association] and drag racing” (First Ivory Affidavit at [20]).

27    Ms Taylor deposed to having known Ms Ivory for about eight years and being aware of her active volunteering at the Benaraby Dragway (Taylor Affidavit at [4]). Ms Taylor’s observations about the community are consistent with those of Ms Ivory. Ms Taylor said, “[t]he community of persons who attend the events at the Benaraby Dragway are a very tight-knit community. For those who attend regularly, we call it a family” (Taylor Affidavit at [5]). She deposed to observing a shift in attitude amongst the Association community towards Ms Ivory after the three Facebook posts and noted that people at drag racing events had asked her whether Ms Ivory was a drug user, a trouble-maker, or could be trusted (Taylor Affidavit at [10]-[11]). Ms Taylor said that, prior to the Facebook posts, she considered Ms Ivory to have had a “generally popular reputation” as “a person who was considered very giving of her time and energy” to the Association community (Taylor Affidavit at [13]). After the posts, it was her view that the Association community, and “other regional societies”, had “formed a generally negative view” of Ms Ivory and “one she did not deserve” (Taylor Affidavit at [12]-[13]). Ms Taylor also deposed to observing that Ms Ivory became “recluse to the community” and stopped attending events (Taylor Affidavit at [14]). Ms Taylor said Ms Ivory told her she “was afraid to attend events because of her concern for her safety” (Taylor Affidavit at [14]). She also said she had “observed Ms Ivory become tearful when talking about returning to the [Association] community, because of her fear of harm and that she will be shunned” by them (Taylor Affidavit at [14]).

28    Mr Hurle is a member of a different drag racing association, the South West Drag Racing Association (SWDRA) (Hurle Affidavit at [3]). He deposed to having known Ms Ivory for about three years and said he sees and speaks with her about once a month when he sees her at drag racing events (Hurle Affidavit at [4]-[5]). He deposes to becoming immediately concerned as to whether Ms Ivory was engaging in illicit drug activities upon reading the three Facebooks posts by Ms Howard (Hurle Affidavit at [10]). He deposed to placing great weight on subsequent (I infer from the context) negative comments by Mr Gawley on Ms Howard’s posts about Ms Ivory because of Mr Gawley’s status as past president of the Association (Hurle Affidavit at [11]). Mr Hurle said that he also observed attendees at the Ironbark Raceway Easter 2023 event being cautious of her, explaining that her “general reputation” was that “she was trouble and should be avoided” (Hurle Affidavit at [13]). Mr Hurle said that it took “some several months for [Ms Ivory] to prove to [him] that she was not a troublemaker” (Hurle Affidavit at [16]).

29    As to the first matter, Ms Ivory’s evidence is that it caused her “sadness and disbelief” (First Ivory Affidavit at [25]). She was particularly impacted by the fact that certain people who were prominent drag racers and acquaintances of hers supported Ms Howard’s posts (First Ivory Affidavit at [26]-[27]). She deposed to feeling shame, lost confidence in herself and her reputation in the Association and wider drag racing community and withdrew from that community until Easter of 2023 (First Ivory Affidavit at [28]).

30    As to the second matter, Ms Ivory’s evidence is that it caused her anger and disbelief that Ms Howard could conjure false allegations of illegal drug use (First Ivory Affidavit at [30]). She said she was particularly hurt because of her strong opposition to drug use and was dismayed when approached by people asking her in person if she could supply drugs to them (First Ivory Affidavit at [31]-[32]). Ms Ivory said she feared for her safety and made a statement to police about the online abuse and threats of violence (First Ivory Affidavit at [33]). She also feared that the vandalism to her bus was connected with the posts (First Ivory Affidavit at [35]).

31    As to the third matter, Ms Ivory deposed to feeling “attacked and sadness”, particularly because, by the time of its publication, she had stopped racing and “was somewhat of a recluse from the racing community as a result of the abuse” (First Ivory Affidavit at [37]). She said she “felt deeply run down and disillusioned by the [Association] community” and that “[t]he group [she] had loved appeared to have turned their back on [her] and [she] could not understand why [she] was continuing to be attacked even after [she’d] left” (First Ivory Affidavit at [40]).

32    The evidence of Ms Taylor and Mr Hurle supports Ms Ivory’s evidence that her reputation has indeed been damaged and that she was shunned by her community. This is a factor of some significance. It is clear from the available evidence that the drag racing community is a close community that provides something in the nature of a “family” structure around those who participate in the sport. I infer that such support is of great importance to many of those who live in regional parts of Queensland, such as Ms Ivory. The loss of support of one’s “family” is likely to be of much greater significance than a mere loss of reputation within an association with a broader and more disparate membership base. Relevantly, Ms Ivory deposed to the people within the community who had shunned her as a result of the posts and the distress it had caused her (First Ivory Affidavit at [56]-[58]).

33    I also take into account that imputations of specific criminal activity are, by their nature, particularly grave. In this case, they involve an imputation that Ms Ivory engaged in such conduct, whilst owing fiduciary obligations to the Association, the effect of which may impact her future participation in community associations of any kind.

Aggravated damages

34    Ms Ivory submitted that there are circumstances of aggravation in the present case. The first to third matters have not been removed and remain accessible, despite service of a concerns notice on 21 September 2023. Further, since the publication of those matters, Ms Howard has continued to post material on Facebook, which carries the imputation that Ms Ivory is a troublemaker because she has started a hate campaign (First Ivory Affidavit at [41]).

35    More significantly, even after judgment was entered against her, Ms Howard made further posts directed at Ms Ivory which carried the imputations that she engaged in criminal activity including stalking, harassment, drug dealing and theft. Such posts included the following statements (Second Finch Affidavit, Annexure WF-1):

    Note well Sheree Ivory and your stalkers … clearly dog videos are not today … I cancelled gigs because I have tonsillitis and I am on my second dose of coclavix …

    I will not stop until that bitch stops harassing me…she’s already cost a YOUNG family their business.

    It is legal to post the truth..you bitch…fuk off with ya pot dealers and their fantasies

    Hey bitch..make sure you tell your church how you caused a YOUNG families business to be fire bombed with your hate

    Stalking khunt STOLE what she though was my info from trach computer…wrong info fukwit

36    As annexed to the Second Finch Affidavit, on 16 November 2024 at 08:22, Ms Howard posted an “IMPORTANT MESSAGE” on Facebook, which, after providing details of her health issues and need for antibiotics, read inter alia:

…now the clincher…i was meant to be in Brisvegas for a court case...I told a bully who was bullying others she’s a fuckn liar…which is truth……proven in her own affidavits…so she’s attempting to sue me…I know what I said and I stand by it…she’s spent copious amounts of money and miles creating a hate fest on the fuckn Yank…which…I BELIEVE…in effect has caused someone to explode his place of work to smithereens…front page sh!t…that business belongs to an innocent young family…this is so wrong and I won’t rest until this hateful thing is stopped…bTW I ain’t saying she did it…she’s too thick to create a bang like that…but it is my belief the hate she has encouraged has caused this…like he’s been getting death threats…all so ridiculous…anyhoo I immediately e mailed the court to say I was a no go…they suggested I attend by phone…however like I wrote…I couldn’t speak…so they wanted proof…I now had to personally get a doctors certificate and go to the courthouse here and do an affidavit,signed by a JP…which I did…spreading germs everywhere…trying not to…I also ended up fainting…so crook…so all that was achieved and the judge accepted it except the giant twat and her beak did not…

(Emphasis added.)

37    This post reinforced the defamatory imputations already contained in Ms Howard’s existing posts.

Assessment

38    The award of damages in the present case needs to provide reparation for the harm done to Ms Ivory’s reputation, give consolation for the personal hurt and distress caused by the Facebook posts, and vindicate her reputation. Although a Court is entitled to have regard to other cases in considering the level of general damages, the quantum is not to be resolved by reference to a norm or standard: Carson at 59.

39    Ms Ivory drew attention to two cases that were said to be of assistance. The first, Ryan v Premachandran [2009] NSWSC 1186, concerned imputations of a school principal’s incompetence, dishonesty, untrustworthiness, and unfitness for office, which the Court regarded (at [134]) as “grave allegations”. Damages were assessed in the amount of $80,000. In Scott v Baring [2018] WASC 361, the second case, the Court explained (at [11]) how Facebook posts carried imputations that the plaintiff, a long term participant in the harness racing industry, had, relevantly, behaved in a manner unbecoming to her position, warranted termination from her employment, was under investigation for misconduct, was incompetent, and had brought the harness racing industry into disrepute. Damages were assessed at $120,000 and aggravated damages of $20,000 were also awarded.

40    Here, the evidence is that Ms Ivory has suffered significant sadness, anger, hurt and dismay on account of the Facebook posts. She has lost friends and acquaintances. She has lost her standing in a close-knit community. Although Ms Taylor deposed to Ms Ivory’s increasing resilience and return to the drag racing community, and recognition by some racing clubs that she is a positive contributor (Taylor Affidavit at [15]-[16]), that neither discounts Ms Ivory’s feelings nor points to restoration of her reputation within her own community of the Association. Similarly, although Mr Hurle deposes to having changed his initial opinion of Ms Ivory and that she is welcome by him at events at the Ironbark Raceway (Hurle Affidavit at [14], [16]), there is otherwise no evidence of change in attitude towards Ms Ivory amongst members of the Association. Indeed, such may be thought unlikely given the posts, as recently as 21 November 2024.

41    I am satisfied that this is a case where it is appropriate to increase the damages that may have been awarded. That is because of Ms Howard’s unjustifiable failure to respond to the concerns notice, her unjustifiable persistence in making untrue allegations, and her improper and unjustifiable approach to this proceeding by failing to engage with it in any legitimate manner.

Disposition

42    In all the circumstances, I consider that an award of damages in the amount of $75,000 is appropriate with interest pursuant to s 51A(1)(a) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and r 39.06 of the Rules, calculated from the date of service of the concerns notice, being 21 September 2023.

43    Further, it is appropriate to order that Ms Howard remove the defamatory posts from the Facebook pages to which she has posted them and be permanently restrained from publishing or republishing matter which carries the same or similar imputations.

44    As to costs, Ms Ivory seeks costs on an indemnity basis. The purpose of a costs order is to compensate, not punish an unsuccessful party: Gain Capital UK Ltd v Citigroup Inc (No 2) [2016] FCA 243 at [37], quoting King v Yurisich (No 2) [2007] FCAFC 51 at [19]. Section 43 of the FCA Act confers broad discretion on the Court to award costs in all proceedings: El-Debel v Micheletto (in his capacity as joint and several trustee in bankruptcy of the estate of El-Debel) (No 2) [2021] FCAFC 146 at [2]. That discretion is unconfined but, while generally exercised in favour of the successful party (Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; 243 CLR 52 at [25]), it:

must be exercised judicially, … according to relevant considerations and taking

account of the contextual features and facts of the litigation.

45    Section 37N of the FCA Act requires parties to conduct themselves in accordance with the overarching purpose of the FCA Act, which is set out in s 37M:

37M The overarching purpose of civil practice and procedure provisions

(1)     The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:

(a)    according to law; and

(b)    as quickly, inexpensively and efficiently as possible.

…

37N Parties to act consistently with the overarching purpose

(1)    The parties to a civil proceeding before the Court must conduct the proceeding (including negotiations for settlement of the dispute to which the proceeding relates) in a way that is consistent with the overarching purpose.

…

(4)    In exercising the discretion to award costs in a civil proceeding, the Court or a Judge must take account of any failure to comply with the duty imposed by subsection (1) …

46    Section 37N(4) makes it clear that the Court must take into account a party’s failure to comply with its obligations under s 37N(1) in the exercise of the Court’s discretion as to costs: Basetec Services Pty Ltd v Leighton Contractors Pty Ltd (No 8) [2017] FCA 258 at [83]. The Court is given an express power by s 43(3)(g) of the FCA Act to order that costs awarded against a party are to be assessed on an indemnity basis.

47    In these proceedings, as I have observed, Ms Howard was represented until 22 October 2024. I accept that, from this date onward, Ms Howard was self-represented. Given that the proceeding was commenced on 10 November 2023, she had ample time in which to give the most basic instructions to enable the orderly progression of the proceeding. It is uncontentious that the fact that a party is self-represented does not abrogate the Court’s discretion to, at least, order that costs follow the event. As was observed by Kenny J in Ogawa v University of Melbourne (No 2) [2004] FCA 1275 at [42]:

… a court … [has] to make allowances for the position of litigants in person, and to try to ensure that such a litigant does not lose out because of lack of expertise; although there is a limit to what the Court can do in that regard, while still remaining an impartial determinant of a dispute. … litigants in person can cause great hardship and expense to other parties, through making allegations and claims that lawyers would recognise as allegations and claims that could not reasonably or even properly be made, and through making proceedings much longer and much more expensive than they would otherwise be, by not focusing accurately on the real issues in the case. Conduct of that nature by legally represented parties would often lead to orders for indemnity costs. Litigants in person may escape the consequence of indemnity costs, but I do not think that the circumstance that a party is a litigant in person is a ground for displacing the ordinary result that costs follow the event.

(Emphasis added.)

48    Ms Howard has, however, engaged in a pattern of behaviour that has shown a contumelious disregard for the Court’s processes, which has increased the cost burden on Ms Ivory. It is appropriate that costs be awarded on an indemnity basis.

Associate:

Dated:        10 December 2024