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  • Appeal Determined - {hollow-slash} Special Leave Refused (HCA)

Di Carlo v Dubois

 

[2004] QSC 41

 

SUPREME COURT OF QUEENSLAND

  

PARTIES:

FILE NO:

Trial Division

PROCEEDING:

Application for leave to appeal against costs

ORIGINATING COURT:

DELIVERED ON:

10 March 2004

DELIVERED AT:

Brisbane

HEARING DATE:

4 March 2004

JUDGE:

Mackenzie J

ORDER:

The application for leave to appeal against the costs orders is refused, with costs of the first, second and third defendants to be assessed.  No order as to costs as between the plaintiff and the fifth defendant.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – COSTS ORDERS – leave to appeal required – principles for granting leave – whether application for leave after expiry of appeal period competent

Emanuel Management Pty Ltd (in liq) v Foster’s Brewing Group Ltd [2003] QSC 484; SC No 3723 of 1999, 17 December 2003, considered

Jiminez v Jayform Contracting Pty Ltd [1993] 1 Qd R 610, cited

Johns v Johns [1988] 1 Qd R, cited

Re Golden Casket Art Union Office [1995] 2 Qd R 346, cited

Thorpe Nominees Pty Ltd v Henderson & Lahey [1988] 2 Qd R 216, cited

Supreme Court Act 1995 (Qld), s 253, s 254

Uniform Civil Procedure, r 747, r 748

COUNSEL:

N M Cooke QC for the plaintiff

P L Feely for the first, second and third defendants

The fifth defendant did not wish to appear

SOLICITORS:

Baker Johnson for the plaintiff

Flower and Hart for the first, second and third defendants

  1. MACKENZIE J:  A costs order in these proceedings was made on 18 December 2003.  An appeal had been filed against the primary orders in the proceedings and when that appeal came on in the Court of Appeal on 24 February 2004 the issue of appealing against the costs orders arose.  It appears that the reasons for the costs order delivered on 18 December 2003 by me were included in the record but there was no notice of appeal.  The question was raised whether, if the appeal against the primary orders was dismissed, my leave would be necessary to appeal against the costs order. 
  1. When the application was brought before me, it became apparent that the fifth defendant, who would be affected by one aspect of the application, had not been served. The matter was stood down and, later in the day, he sent a fax saying that he did not wish to appear.
  1. The starting point in the argument is the Supreme Court Act 1995 which, for relevant purposes, reproduced ss 9 and 10 of the Judicature Act (40 Vic No 6).  Section 254 of the Supreme Court Act 1995, which provides that an appeal lies to the Court of Appeal from every order of a judge, is modified in respect of orders as to costs only which by law are left to the discretion of the judge.  In respect of those orders, s 253 provides that they are subject to appeal only if the judge making the order gives leave.  According to the currently applied principle, which is of long standing, if the costs order below is not subject to consequential revision upon the judgment appealed against being set aside or varied, leave from the trial judge is necessary to challenge the costs order.  (Thorpe Nominees Pty Ltd v Henderson & Lahey [1988] 2 Qd R 216; Re Golden Casket Art Union Office [1995] 2 Qd R 346). 
  1. Although there will be occasional cases where leave to appeal becomes otiose because the appeal against the substantive judgment succeeds, with consequent setting aside or varying of the order for costs, the requirement that leave be obtained in case the substantive appeal fails is logically based. The appeal in a case where consequential setting aside or varying of the costs order occurs is conceptually different from an appeal against an exercise of discretion. Once the appellant must establish grounds for setting aside a discretionary judgment, there is no reason to distinguish between a case where the issue becomes of that kind because a substantive appeal is dismissed and one where no issue is taken with the substantive judgment but it is alleged that the costs order is erroneous in principle.
  1. The requirement that leave be obtained implies, firstly, that leave is not given merely for the asking. By analogy with other instances where leave to appeal is necessary, a plausible basis for arguing that there are some prospects of success must be demonstrated. Secondly, because the judgment as to costs is a discretionary judgment it would be necessary to identify some prospect of success on an argument that there was a demonstrable error in principle, or on an argument that the order was so unreasonable that it could not have been properly made.
  1. There is also another issue which arises from a view expressed by Chesterman J in Emanuel Management Pty Ltd (in liq) v Foster’s Brewing Group Ltd [2003] QSC 484 in reasons delivered following a hearing on 17 December 2003.  The point is whether leave can be given by a judge of the Trial Division if the application to the trial judge is made outside the period of 28 days prescribed by UCPR 748 for appealing to the Court of Appeal.  UCPR 748 also provides for extension of that period, but only by the Court of Appeal. 
  1. Chesterman J noted that there was no direct authority on the issue. He observed that s 253 of the Supreme Court Act 1995 did not of itself prescribe a time within which an application for leave should be made.  UCPR 747 provides that where leave is necessary for the institution of an appeal, the notice of appeal must identify the order giving leave and the specific question upon which leave to appeal has been granted.  He said that since an application made after 28 days would be one for leave to apply for an extension of time or for leave to appeal conditional upon the Court of Appeal extending time within which to appeal, an application brought after 28 days was not one for leave to appeal. 
  1. He referred to Johns v Johns [1988] 1 Qd R 138 where an appeal from the District Court could only be brought by leave.  The relevant rule of the Supreme Court then operative prescribed that an appellant, by leave or by right, should institute the appeal within the time prescribed by the District Court rule.  Williams J giving what was effectively the judgment of the court, said that leave had to be obtained before institution of the appeal.  Otherwise it was not an appeal by leave.  Chesterman J pointed out that Jiminez v Jayform Contracting Pty Ltd [1993] 1 Qd R 610 expressly adopted that view.  Chesterman J said that because, in the case of a costs order, leave could only be given by the judge who made the order, the expedient of the Court of Appeal giving both an extension of time and leave to appeal was not operative.  Since an application for leave to appeal must occur first, if it was not made within 28 days of making the costs order any appeal instituted pursuant to the leave would be incompetent.  He inferred that the appeal contemplated by s 253 was one which was competent, that is to say, one that could be brought within the prescribed time. 
  1. It was not necessary for Chesterman J to finally decide the question. In any event, despite his doubts, he gave the applicant, a non-party against whom costs had been awarded, leave to appeal limited to the ground that the plaintiffs succeeded in their appeal against the substantive orders made. The judgment in the action had been appealed against and he took the view that should the plaintiff succeed, then the costs orders would be varied. He took the view that it would be unjust if the plaintiffs succeeded on the appeal but the costs against the applicant, not being a party to the appeal, could not be disturbed. Chesterman J then went on to deal with the broader aspects of the application which had been brought by the unsuccessful plaintiffs and the non-party which had been ordered to pay costs as well. He refused the application in all respects except the limited one mentioned above because delay in applying for leave had been inadequately explained and no cogent reasons had been given for disturbing the costs order.
  1. The conclusion to be drawn is that the proper sequence of events is that leave to appeal should be obtained from the judge making a costs order before the notice of appeal is filed. The only issue is whether, if the application for leave to appeal is not made until the period prescribed for the appeal to be instituted has expired (and has not been extended by the Court of Appeal), leave to appeal may be granted.
  1. Analysis of the various steps suggests that where the period of twenty eight days has elapsed from the delivery of judgment, a person who wishes to institute an appeal after that time logically should apply initially to extend the time within which to appeal. In the present case, that can only be done by the Court of Appeal; but if the application is granted, the extended time period allowed becomes the time within which the appeal must be instituted. In considering whether or not to grant an extension of time prospects of success and explanation for delay are relevant factors.
  1. In the phase where the question is whether leave to appeal should be granted, it is less clear that delay is a relevant factor for the trial judge. Firstly, that aspect would be addressed by the Court of Appeal in deciding to allow an extension of time within which to appeal. Secondly, in deciding whether leave to appeal should be granted, the focus is ordinarily on the merits or justice of the case. It would only be if the concept of granting leave to appeal, in the particular context under consideration, implies that both prospects of success on the merits and prospects of obtaining an extension of time within which to appeal are rolled up in it that the latter becomes a relevant factor.
  1. In my view, the proper construction is that, on an application for leave to appeal to the judge who made the costs order, the focus should be on the prospects of success in having the discretionary judgment set aside or varied. The question whether an extension of time within which to appeal should be granted should be left within the province of the Court of Appeal. The inconvenience in this division of responsibilities is that prospects of success is an issue at each stage.
  1. There are two ways of approaching the question. The first, which adopts Chesterman J’s reasoning, would be to require the question of extension of time within which to appeal to be determined first by the Court of Appeal. If an extension is granted until a specified time subject to leave of the trial judge being granted within that time, the trial judge would consider whether leave should be granted. If an extension were refused by the Court of Appeal for one or both of the reasons of lack of reasonable prospects of success or delay, the need to apply for leave to the trial judge would disappear.
  1. The second would be to obtain leave from the trial judge and then seek an extension of time from the Court of Appeal. For the reasons given by Chesterman J, this seems a less logical sequence, even if leave to appeal were conditional on a successful application for leave to extend time.
  1. In my view, the better view is that unless an application for leave to appeal against a costs order is made and determined within the 28 days allowed for instituting an appeal, a judge who has made a costs order does not have power to grant leave to appeal, at least unconditionally, unless the applicant has successfully obtained an extension of time within which to appeal from the Court of Appeal, and the application to the judge who made the order is made and determined before the extension of time expires.
  1. The costs orders against which leave to appeal is sought are that:

(a)each party bear their own costs of the first trial;

(b)a Bullock order requiring the fifth defendant to pay to the plaintiff costs that the plaintiff was required to pay to the first, second and third defendants be refused.

  1. There was only the most rudimentary argument on behalf of the plaintiff as to why leave to appeal was justified. It did not descend to particularity as to how it was to be argued that the orders were vulnerable to attack. No errors in principle were identified; it was not suggested that they were so unreasonable that they could not properly be made. At the most, it seemed to be suggested that other orders might have been made. The respondent first, second and third defendants submitted that there was nothing to suggest any manifest error of law or other relevant error capable of showing the discretion had miscarried.
  1. In the circumstances, the application for leave is refused. Had I been persuaded that there were reasonable prospects of success, I may have been disposed to make an order, in the interests of avoiding the need to apply to the Court of Appeal for an extension of time and appearing again before me to seek leave to appeal, with the following elements:

An order giving leave conditional upon:

(a)the Court of Appeal determining that leave to appeal could be granted notwithstanding that the appeal period had expired and not been extended, prior to an application for leave to the Court of Appeal for an extension of time within which to appeal;

(b)if so, the applicant filing and serving an application for extension of time within seven days;

(c)the applicant obtaining an extension of time within which to appeal.

Orders

  1. The orders are as follows:

The application for leave to appeal against the costs orders is refused, with costs of the first, second and third defendants to be assessed.  No order as to costs as between the plaintiff and the fifth defendant.

Close

Editorial Notes

  • Published Case Name:

    Di Carlo v Dubois & Ors

  • Shortened Case Name:

    Di Carlo v Dubois

  • MNC:

    [2004] QSC 41

  • Court:

    QSC

  • Judge(s):

    Mackenzie J

  • Date:

    10 Mar 2004

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2003] QSC 20416 Jul 2003Trial of personal injury claim following CT scan; plaintiff has not discharged the onus of proving that he would not have undergone the procedure had he been directly warned; judgment for plaintiff against one of the defendants for $80,000 which was governed by pleadings: Mackenzie J.
Primary Judgment[2003] QSC 43518 Dec 2003Costs of adjournment of trial and trial proper where reasons given in [2003] QSC 204; no order as to costs on adjournment and standard event costs for trial: Mackenzie J.
Primary Judgment[2004] QSC 4110 Mar 2004Application for leave to appeal cost order made in [2003] QSC 435; application dismissed: Mackenzie J.
Primary Judgment[2007] QSC 9528 Mar 2007Application be respondents to strike out claim and statement of claim; claim seeks to set aside judgment on 16 July 2003 dismissing personal injury claim; claim based speculatively on unparticularised fraud; claim and statement of claim struck out with costs on the indemnity basis: de Jersey CJ.
QCA Interlocutory Judgment[2003] QCA 41518 Sep 2003Application for stay of costs orders made in [2002] QCA 225; application adjourned: Jerrard JA.
QCA Interlocutory Judgment[2003] QCA 51417 Nov 2003Application for security for costs brought by respondents refused; appeal against trial judgment on 16 July 2003; application refused: McMurdo P, Davies JA and Mullins J.
QCA Interlocutory Judgment[2004] QCA 3820 Feb 2004Mention of appeal CA7132/03 against trial judgment on 16 July 2003; appellant pay costs of mention: Williams JA.
QCA Interlocutory Judgment[2006] QCA 40418 Oct 2006Application in Court of Appeal without filing substantive appeal; application for order relieving any requirement to disclose CT scan documents; incorrectly instituted; application dismissed with costs: Williams and Keane JJA and McMurdo J.
QCA Interlocutory Judgment[2007] QCA 19608 Jun 2007Directions hearing; order that CA1388/06 and CA3622/07 be heard together; applicant delay in prosecuting appeal: McMurdo P.
Appeal Discontinued (QCA)-24 Feb 2004See [2004] QCA 46: parties agreed to dismiss appeal against fourth respondent to appeal CA7132/03 and CA2504/04; substantive appeal judgment is [2004] QCA 150: Davies and Williams JJA and McMurdo J.
Appeal Discontinued (QCA)-23 Mar 2006See [2006] QCA 94; formal pronouncement of orders by consent in application in CA9805/01; discharge temporary stay (made on adjournment on earlier stay application), and cost orders: Jerrard JA.
Appeal Determined (QCA)[2002] QCA 22525 Jun 2002Appeal against cost order following adjournment of jury civil trial (with leave to do so from trial judge); allowing the appeal and amending the cost order so that the plaintiff pay costs incurred as consequence of pleading amendments; trial costs otherwise reserved: Williams JA, White and Wilson JJ.
Appeal Determined (QCA)[2004] QCA 15007 May 2004Dismissing appeal against 16 July 2003 judgment; primary judge erred in finding there was no duty to warn, but no error in finding that the appellant would have proceeded with the procedure; application for extension of time to appeal refusal of leave to appeal (10 March 2004) cost orders made 18 Dec 2003 dismissed: Davies and Williams JJA and McMurdo J (Williams JA dissenting on duty to warn).
Appeal Determined (QCA)[2007] QCA 31628 Sep 2007Application for extension of time to file further notice of appeal against 16 July 2003 decision following recovery of new evidence of CT scan images (CA1388/06) seeking new trial; application for extension of time to appeal against decision to strike out claim and statement of claim made on 28 March 2007 seeking to set aside 16 July 2003 judgment (CA3622/07); applications dismissed; insufficient merit of prejudice warranting grant of leave in either app: Keane and Muir JA and Cullinane J.
Appeal Determined (QCA)[2003] QCA 47631 Oct 2003Appeal filed 14 August 2003 never prosecuted; notice of appeal struck out for want of prosecution: McMurdo P.
Application for Special Leave (HCA)[2007] HCATrans 81819 Dec 2007Application for reinstatement of special leave application (B55/07); application is reinstated on condition that the applicant pay the costs of the first and second respondents on an indemnity basis: Kiefel J.
Special Leave Refused[2005] HCATrans 16621 Mar 2005Special leave against 7 May 2004 decision refused with costs; no prospects of reversing findings of primary judge; any complaint of apprehended bias in Court of Appeal waived: Kirby and Hayne JJ.
Special Leave Refused[2008] HCASL 53717 Oct 2008Special leave application against decision on 28 September 2007 refused with costs; insufficient prospects of success in this Court to warrant a grant of special leave to appeal: Gummow and Kiefel JJ.

Appeal Status

Appeal Determined - {hollow-slash} Special Leave Refused (HCA)
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