FEDERAL COURT OF AUSTRALIA

Smits v Loel (No 2) [2015] FCA 29

Citation:	Smits v Loel (No 2) [2015] FCA 29	
		
Parties:	LEONARDUS GERARDUS SMITS v JAMES BERESFORD LOEL, PIONEER INVESTMENTS (AUST) PTY LTD and LILLAS & LOEL LAWYERS	
		
File number:	QUD 725 of 2013	
		
Judge:	RANGIAH J	
		
Date of judgment:	30 January 2015	
		
Date of hearing:	Heard on the papers	
		
Date of last submissions:	15 December 2014 (First, Second and Third Respondents)
Applicant did not provide submissions	
		
Place:	Brisbane	
		
Division:	GENERAL DIVISION	
		
Category:	No Catchwords	
		
Number of paragraphs:	4	
		
Counsel for the Applicant:	The Applicant did not appear	
		
Counsel for the First, Second and Third Respondents:	Mr G Handran	
		
Solicitor for the First, Second and Third Respondents:	Lillas & Loel Lawyers	

IN THE FEDERAL COURT OF AUSTRALIA		
QUEENSLAND DISTRICT REGISTRY		
GENERAL DIVISION	QUD 725 of 2013	
 
BETWEEN:	LEONARDUS GERARDUS SMITS
Applicant
	
AND:	JAMES BERESFORD LOEL
First Respondent

PIONEER INVESTMENTS (AUST) PTY LTD
Second Respondent

LILLAS & LOEL LAWYERS
Third Respondent

JUDGE:	RANGIAH J	
DATE OF ORDER:	30 January 2015	
WHERE MADE:	BRISBANE	

THE COURT ORDERS THAT:

1.	The applicant pay the first, second and third respondents’ 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.

IN THE FEDERAL COURT OF AUSTRALIA		
QUEENSLAND DISTRICT REGISTRY		
GENERAL DIVISION	QUD 725 of 2013	
 
BETWEEN:	LEONARDUS GERARDUS SMITS
Applicant
	
AND:	JAMES BERESFORD LOEL
First Respondent

PIONEER INVESTMENTS (AUST) PTY LTD
Second Respondent

LILLAS & LOEL LAWYERS
Third Respondent

JUDGE:	RANGIAH J	
DATE:	30 january 2015	
PLACE:	BRISBANE	

REASONS FOR JUDGMENT
1		On 10 December 2014, I gave summary judgment in favour of the first, second and third respondents.  The basis was that the proceeding was both a direct and collateral attack in this Court upon the processes and orders of the Supreme Court of Queensland.  The proceeding had no reasonable prospects of success and was an abuse of process.  I also made an order, which the applicant did not oppose, dismissing the proceeding against the fourth respondent, John M O’Connor & Company.
2		In their application for summary judgment the first, second and third respondents sought an order that the applicant pay their costs on an indemnity basis, but did not address that issue in their oral or written submissions.  Consequently, I gave the parties leave to file written submissions concerning costs.  The first, second and third respondents have filed written submissions, but the applicant has not.
3		Indemnity costs may be ordered under r 40.02 of the Federal Court Rules 2011 (Cth). They are awarded to compensate a party fully for costs which the usual party-party order does not cover when there are special or unusual circumstances:  Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 at 233-234, per Sheppard J.
4		The principal proceeding challenging the processes and orders of the Supreme Court was brought in disregard of clearly established legal principles.  It lacked any reasonable prospect of success and was an abuse of process.  In addition, the applicant unreasonably failed to accept an offer made by the first, second and third respondents that the applicant discontinue the proceeding with no order as to costs.  These circumstances warrant an order that the applicant pay the first, second and third respondents’ costs of the proceeding on an indemnity basis.  

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah.	

Associate:	

Dated:	30 January 2015