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- Unreported Judgment
 QCA 168
COURT OF APPEAL
Appeal No 2976 of 2020
SC No 3151 of 2019
PAUL THOMSON Appellants
KIMBERLEY COLLEGE LTD Respondent
ACN 080 765 760
13 AUGUST 2020
FRASER JA: This matter started out as an appeal against orders made in the Trial Division effectively granting leave to allow an amended statement of claim to be delivered and ordering the appellant, who was the defendant in the Trial Division, to pay the costs of that proceeding. The appellant appealed against all orders but, as a result of developments in the Trial Division, subsequently agreed not to pursue the appeal against the substantive orders, leaving only the appeal against the costs order made in the Trial Division. The effect of that is that the appeal is now an application for leave to appeal against the costs order. An unusual feature of the case is that the judge who granted leave to amend also encouraged the parties to resolve the issues about the pleading by, if necessary, an application in the Trial Division by the appellant to strike out the aspects of the pleading which the appellant submitted were inappropriate or defective for various reasons.
So we now have the position in which the arguments that would be ventilated in the proposed appeal against the costs order are very similar to, and indeed in most respects substantially identical with, the arguments that the appellant is now intent on pursuing in the strike out application in the Trial Division. Upon the face of it, an appropriate solution to this unusual position in which the Court finds itself is to make orders setting aside the costs order made by the primary judge and remitting the question of costs in the Trial Division and costs of this proposed appeal to the judge who hears the strike out application.
Of course, the judge who hears the strike out application will have regard to the reasons given by the primary judge for making the costs order and the arguments for and against the costs order made before the primary judge, to the extent that they remain appropriate, can be heard together with any other arguments about the appropriate costs order that may appear after the strike out application is heard. My own view is that this is a case in which the Court should not embark upon a consideration of the merits of the appeal. They can better be investigated by the judge hearing the strike out application who will have available to him or her the usual array of discretionary orders that may be made.
The respondent opposed that course on a number of grounds. I will briefly mention those which appear to be most significant. First, the respondent argued that it is not appropriate to grant leave to appeal in the circumstances in which the appellant had abandoned the appeal against the substantive orders made in the Trial Division. For the reasons already given, the abandonment of that aspect of the appeal is explicable by what occurred in the Trial Division and is not a reason for refusing leave to appeal in this unusual case.
It was also argued for the respondent that the appeal was always inappropriate because the issue could be dealt with in the Trial Division. In fact, the only way to set aside the costs order made by the primary judge appears to have been by way of an appeal. And it was appropriately coupled with an appeal against the substantive orders until it became clear that they would be dealt with in the Trial Division. The respondent argued that, the appellant having effectively abandoned the substantive aspects of the appeal, the Court should not give leave to appeal merely on a costs order. That often would be a persuasive argument, but for the reasons already given, this is such an unusual case that it is appropriate to grant leave to appeal.
The respondent also made submissions about the merits of the proposed appeal, but again for reasons already given the merits are better dealt with by the judge who hears the strike out application. The respondent also submitted that the appellant was protected to some extent by the order in the Trial Division. In this respect, the primary judge noted that whilst in some respects the granting of leave to amend might be described as an indulgence, the rules make provision for the costs thrown away by an amendment or the costs that are incurred by a defendant in having to deal with an amendment. However, that does not include the costs of the application for leave to amend the pleading.
The primary judge gave other reasons for making the costs order that was made, and as I have indicated, those reasons can be re-agitated in the form of arguments before the judge who hears the strike out application. The Court cannot currently adjudicate upon them without considering the merits of the detailed arguments, which it is inappropriate for the Court to do.
For these reasons, I would propose the following orders. By consent, dismiss the appeal against the orders made in the Trial Division on 12 March 2020 except for order number 6. Grant leave to appeal against order number 6. Allow the appeal. Set aside order number 6. Reserve the costs of the application for leave to amend heard in the Trial Division on 12 March 2020 and the costs of the application for leave to appeal and the appeal to the judge listed to hear the strike out application, which is listed for hearing on 18 August 2020.
PHILIPPIDES JA: I agree.
MULLINS JA: I agree.
FRASER JA: The orders I articulated are the orders of the Court.
- Published Case Name:
Thomson & Ors v Kimberley College Ltd
- Shortened Case Name:
Thomson v Kimberley College Ltd
 QCA 168
Fraser JA, Philippides JA, Mullins JA
13 Aug 2020