Cameron v Qantas Airways Limited [2011] NSWSC 1498 (9 December 2011)

Last Updated: 15 December 2011

Supreme Court New South Wales

Case Title:	Cameron v Qantas Airways Limited
Medium Neutral Citation:	[2011] NSWSC 1498
Hearing Date(s):	13 October 2011
Decision Date:	09 December 2011
Jurisdiction:	Common Law
Before:	Harrison J
Decision:	1. Order the plaintiff to pay Qantas' costs of and incidental to the notice of motion filed on 11 December 2008 in District Court proceedings 6941/2001. 2. Order the plaintiff to pay Qantas' costs of and incidental to the interpleader proceedings commenced by Qantas in the District Court proceedings 6941/2001 and following their removal to this Court.
Catchwords:	COSTS - where defendant seeks costs reserved in District Court and of interpleader proceedings - where plaintiff's applications for relief in District Court unsuccessful - where defendant did nothing to promote plaintiff's applications - where defendant instituted interpleader proceedings because plaintiff refused to accept monies payable in accordance with settlement - defendant entitled to cost orders sought
Legislation Cited:
Cases Cited:	Cameron v Qantas Airways Limited [2008] NSWCA 275 Cameron v Qantas Airways Limited [2011] NSWSC 1137 Cameron v Qantas Airways Limited [2011] NSWSC 1138 Cameron v Qantas Airways Ltd [2009] NSWCA 339 Cameron v Qantas Airways Ltd [2010] NSWSC 899 Cameron v Qantas Airways Ltd [2011] NSWSC 178
Texts Cited:
Category:	Procedural and other rulings
Parties:	Rita Cameron (Plaintiff) Qantas Airways Limited (First Defendant) Walker Legal (Second Defendant) Craddock Murray Neumann (Third Defendant)
Representation
- Counsel:	J Catsanos (First Defendant)
- Solicitors:	HWL Ebsworth (First Defendant)
File number(s):	2001/92202
Publication Restriction:

JUDGMENT

1. HIS HONOUR : Qantas Airways Limited seeks orders for the costs reserved in District Court proceedings 6941/2001 and costs of interpleader proceedings taken by Qantas as part of Ms Cameron's proceedings in that court. Those applications arise in circumstances outlined below.

Background

2. Ms Cameron was injured in the course of her employment with Qantas. She commenced proceedings in the District Court claiming damages. McLoughlin DCJ heard the matter over a number of hearing days in the period between 5 February 2007 and 1 February 2008. On that day the matter settled upon the basis of a verdict for Ms Cameron for $940,000 inclusive of costs less workers' compensation payments already made.

3. Much of what relevantly occurred thereafter is recorded by Latham J in her reasons for judgment published on 25 February 2011: see Cameron v Qantas Airways Ltd [2011] NSWSC 178. It is presently relevant to record that shortly following the settlement of the proceedings, Ms Cameron sought to resile from the compromise and terminated the services of her then solicitors. Qantas thereafter sought to pay the net settlement monies into court. Ms Cameron then sought leave to appeal to the Court of Appeal against the consent orders in the District Court. That application was dismissed: see Cameron v Qantas Airways Limited [2008] NSWCA 275.

4. On 11 December 2008 Ms Cameron filed a motion in the District Court seeking to set aside the settlement. McLoughlin DCJ, who had presided over the original proceedings, heard that motion. On 14 April 2009 his Honour dismissed the motion and ordered Ms Cameron to pay half of Qantas' costs. Ms Cameron then appealed to the Court of Appeal, which by consent allowed the appeal and set aside his Honour's judgment and orders: see Cameron v Qantas Airways Ltd [2009] NSWCA 339.

5. Despite all of this Ms Cameron filed a further motion in the District Court that came before Johnstone DCJ. His Honour dismissed that motion on 28 January 2010 on the basis that it was irregular and that Ms Cameron had foreshadowed an intention to commence proceedings in this Court. His Honour reserved the costs of the motion indicating that he would give Qantas the opportunity to come back to argue the question if so advised once the Supreme Court proceedings had been dealt with.

6. Ms Cameron then commenced these proceedings in this Court on 13 May 2010 seeking again to set aside the settlement. Her Honour Schmidt J granted Ms Cameron leave on 13 August 2010 further to amend her statement of claim and ordered her to pay Qantas' costs: see Cameron v Qantas Airways Ltd [2010] NSWSC 899. Ms Cameron had also filed a summons in this Court on 16 August 2010 seeking an order that the District Court proceedings be transferred to this Court. The Registrar made that order on 24 September 2010.

7. Subsequently on 21 February 2011, her Honour Latham J heard an application by Qantas to strike out the statement of claim. Her Honour did so on 25 February 2011: see [2011] NSWSC 178. Leave to appeal from her Honour's decision was refused with costs by the Court of Appeal on 26 August 2011. Ms Cameron later filed an application for special leave to appeal to the High Court on 23 September 2011.

8. Finally, on 23 September 2011, I published my reasons for judgment in Cameron v Qantas Airways Limited [2011] NSWSC 1138 in which I said this at [6]-[8]:

"[6] The most distressing aspect of this long and protracted litigation is that it has dissipated a substantial fund to which Ms Cameron became entitled following the settlement of her claim, ultimately, it would seem, for no good purpose and for no legitimate reason. Ms Cameron's dissatisfaction with the District Court settlement has returned a result to her that is, on one fairly available view, wholly disproportionate to any concerns that she could possibly have had about its perceived inadequacy in the first place or the fulfilment of professional duties owed to her by legal representatives whom she then retained in the second place. Whatever complaint she may have had, or perceived that she was able to agitate, with respect to the outcome of her District Court litigation, has continued to obsess her. The end result of this is that a not inconsiderable fund that became available for Ms Cameron's own use and benefit from the settlement has now been largely swallowed up by adverse costs orders and similar avoidable outcomes. Notwithstanding all of this, Ms Cameron persists to tilt at understandably dispassionate and disinterested windmills that cannot be expected to deliver the resolution that she craves.

[7] The orders that Ms Cameron still seeks are clearly in respect of matters that were long ago subsumed in the original settlement. As unpalatable as it may be for Ms Cameron to accept, the case is over. It has been for some time. Ms Cameron must in my view sooner rather than later come to terms with this reality lest the balance of any monies that she can yet enjoy also disappears on whimsical projects with no real or meaningful prospect of a return. Ms Cameron unfortunately labours without the benefit of legal advice and shows no sign in those circumstances of coming to any realistic appreciation of the self-destructive course of her unremitting endeavours.

[8] I can see no basis for the making of any orders in her favour. Her notice of motion is hopeless and must be dismissed. It may be that her opponents will form the view that the costs of her ill-advised application are no longer worth pursuing. I will however obviously hear the parties on the costs of this application if called upon to do so."

Submissions

9. Qantas asks this Court to determine the costs reserved by Johnstone DCJ, which it contends have effectively been transferred to this Court as part of the interpleader proceedings. Qantas submits that those costs should follow the event in the District Court. Ms Cameron's application for relief in that court was ultimately unsuccessful and Qantas contends that it should not have to bear those costs. Ms Cameron's application for similar relief in this Court was also ultimately unsuccessful. Qantas did nothing to promote her application and was put to the trouble and expense of resisting it. Qantas submitted that there was no basis for departing from the ordinary rule.

10. Further, Qantas contended that it was in no way complicit in the generation of any of the costs concerned and was not responsible for the way Ms Cameron framed her claim. Qantas had no choice but to appear and defend the applications. All steps taken by Qantas were taken in the hope of having the matter dealt with expeditiously and cost effectively. That did not ultimately come to pass. Qantas submitted that to let the costs of the motion before McLoughlin DCJ lie where they fell would penalise it because its costs were legitimately incurred. Qantas seeks payment by Ms Cameron of the costs reserved by Johnstone DCJ pending the outcome in this Court. Qantas submitted that the proper order for costs is that they should follow the event and should take account of and include all of the costs of Ms Cameron's motion, including the costs of the hearing before McLoughlin DCJ in April of 2009.

11. Qantas also contends that it is entitled to the costs of the interpleader proceedings in the District Court. It submits that it had no alternative but to use that mechanism in circumstances where Ms Cameron refused to accept the monies that Qantas was obliged to pay to her in accordance with the terms of settlement. The interpleader application was necessitated entirely by her conduct. Qantas then withdrew from the proceedings subject to the reservation of the question of its costs. It did so in the light of the comments made by Johnstone DCJ on 3 July 2008 as follows:

"HIS HONOUR: I thought the whole idea of you interpleading is that you could just go away and not worry about it...I don't want Qantas coming back here again until we're ready to deal with their costs of the interpleader."

12. Qantas also claimed the costs of the proceedings in this Court as the extension of the interpleader proceedings when transferred here.

13. Ms Cameron relied upon affidavits sworn by her on 4 August 2011 and 30 September 2011. Each affidavit annexes a raft of material. It is not possible conveniently to explain it all or to summarise it in a meaningful way. It is fair to say however that none of it is directed to meeting the claim that Qantas makes for an order that Ms Cameron pay its costs.

14. There is no doubt that Ms Cameron opposes such an order. So much is apparent from the emotive and at times emotional submissions made to me. Unfortunately, Ms Cameron's submissions were unstructured and discursive and not directed to the matters in issue. I invited Ms Cameron to provide me with written submissions later if she wished to do so but my offer was not taken up. The arrival in my chambers of a large bundle of further written material, to which I have had regard, did not include anything in the nature of the submissions I was encouraging Ms Cameron to provide.

Consideration

15. There does not appear to be any legal merit in Ms Cameron's opposition to Qantas' claim. Her challenge to the settlement was unsuccessful and with the exception of her win in the Court of Appeal dealing with the decision of McLoughlin DCJ on the issue of the enforceability of the terms of settlement, she has in all respects otherwise completely failed. Ms Cameron should pay any costs incurred by Qantas that are associated with those failures.

16. Similarly, the interpleader proceedings were Qantas' attempt to find a vehicle that would enable it to disgorge the net balance of the settlement monies in a timely and efficient way without having to become or to remain tied to seemingly endless and unsuccessful applications to the Court in the outcome of which it had no particular interest. These applications have contributed to the unnecessary and otherwise avoidable dissipation of the monies to which Ms Cameron became entitled, in payment of legal costs and disbursements to former solicitors for legal work performed by them that became secured by liens over the fund, to which I have made reference in detail elsewhere: Cameron v Qantas Airways Limited [2011] NSWSC 1137. Qantas' application in these proceedings represents yet another unfortunate assault upon that ever decreasing fund intended for Ms Cameron's benefit as compensation for her injuries and disabilities.

17. However, in all of the circumstances of this case, and notwithstanding the sad state of affairs that has developed over many years, I consider that Qantas is entitled to the orders that it seeks. I can see no basis upon which to make any order for costs other than the usual order: see UCPR 42.1. Accordingly I make the following orders:

1. Order the plaintiff to pay Qantas' costs of and incidental to the notice of motion filed on 11 December 2008 in District Court proceedings 6941/2001.

2. Order the plaintiff to pay Qantas' costs of and incidental to the interpleader proceedings commenced by Qantas in the District Court proceedings 6941/2001 and following their removal to this Court.

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