Cohen v Double Bay Bowling Club (No 5)

On 20 July 2021 I ordered that these proceedings be dismissed with costs, as against the first defendant, Double Bay Bowling Club.

I have now received written submissions in relation to the Club’s application for indemnity costs.

The parties agree that I may deal with this question on the papers.

There is no dispute as to the relevant principles, which were summarised in the Club’s submissions as follows:

Any one of these circumstances might, in an appropriate case, justify an order for indemnity costs.

The unsatisfactory manner in which the plaintiffs have conducted these proceedings is summarised in my judgment of 20 July 2021, [1] and also my earlier judgment of 26 March 2021. [2]

As I recorded in my judgment of 26 March 2021, the plaintiffs’ counsel accepted that the proceedings have had a “long and tortured history”. [3]

Whether or not it can be concluded that the plaintiffs should have known that the claim against the Club had no chance of success, [4] the history of the matter shows that they have maintained proceedings which did not in fact have reasonable prospects of success, [5] that they have, belatedly, abandoned substantial parts of their claim [6] and have conducted the proceedings as against the Club in a manner that has caused unreasonable costs and delay. [7]

On behalf of the plaintiffs it was submitted that “the fact that certain causes of action were subsequently abandoned is an entirely neutral matter because the underlying facts, matters and circumstances relied upon by the plaintiffs against the Club did not change”.

I do not agree.

The plaintiffs’ abandonment of the causes of action identified in my judgments is not a neutral matter because it had the effect of changing, fundamentally, the manner in which the plaintiffs propounded their claim against the Club.

In the result, I have found the most recent iteration of the plaintiffs’ proposed pleadings to be so weak that I have refused to grant them leave to rely on it and have, looking at the matter overall, decided that the case against the Club should be dismissed.

In my opinion, this is an appropriate matter in which an order for indemnity costs should be made.

I order that the plaintiffs’ pay the first defendant’s costs of the proceedings on an indemnity basis.