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Goodwin v O'Driscoll[2007] QCA 108

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Goodwin v O'Driscoll & Anor [2007] QCA 108

PARTIES:

BRUCE GOODWIN

(applicant/appellant)

v

MICHAEL O'DRISCOLL

(first respondent/not a party to the appeal)

GERARD JAMES MURPHY

(second respondent/respondent)

FILE NO/S:

Appeal No 9271 of 2006

SC 7474 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

2 April 2007

DELIVERED AT:

Brisbane

HEARING DATE:

2 April 2007

JUDGES:

McMurdo P, Jerrard JA and Wilson J

Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed with costs

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – COSTS ORDERS – the appellant seeks to appeal a costs order made by a Supreme Court judge – the appellant did not seek or obtain leave of the primary judge to appeal the costs order – whether the appeal is competent

Judicial Review Act 1991 (Qld), s 49

Supreme Court Act 1995 (Qld), s 253

Emanuel Management Pty Ltd (in liq) v Fosters Brewing Group Ltd [2003] QSC 484, cited

Morrison v Hudson [2006] QCA 170; [2006] 2 Qd R 465, cited

Re Golden Casket Art Union Office [1994] QCA 480; [1995] 2 Qd R 346, cited

COUNSEL:

The appellant appeared on his own behalf

K Howe for the respondent

SOLICITORS:

The appellant appeared on his own behalf

McCowans for the respondent

McMURDO P:  Justice Wilson will deliver her reasons first.

WILSON J:  This is an appeal against the decision of Mr Justice Helman made on 4 October 2006 in a judicial review proceeding.  The orders made by his Honour were that the orders made by the Small Claims Tribunal at Southport on 26 July 2004 in proceeding no 2306 of 2003 be quashed and that there be no order as to costs.

The judicial review application was part of a protracted dispute between the appellant and the second respondent about a dividing fence.  The Small Claims Tribunal made an order on 31 March 2004 about the construction of a dividing retaining wall and a differently constituted Small Claims Tribunal purported to make a further order on 26 July 2004.  The appellant was the applicant in the judicial review proceeding.

At the hearing before Mr Justice Helman, it was common ground that the differently constituted Small Claims Tribunal lacked jurisdiction to make the order on 26 July 2004.  That had been recognised in a hearing before Justice Fryberg on an injunction application.  The appellant subsequently had the judicial review application listed and it came on before Mr Justice Helman.  In the circumstances, it was proper that an order be made quashing the order of the Small Claims Tribunal.

That left the costs of the judicial review application as the only issue for determination by Mr Justice Helman.  The appellant makes a number of complaints about the conduct of the proceeding before his Honour, namely that his Honour erred in not having him sworn, in allowing counsel for the second respondent to address him first, in being misled by counsel for the second respondent about the history of the dispute, in allowing three interruptions to the hearing so denying the appellant a fair hearing, and in finding that both the appellant and the second respondent had contributed to the Tribunal's error, and so no costs should be awarded.

The appeal in this Court is against the costs order only.  The making of an order as to costs involves the exercise of judicial discretion on a procedural question and, by section 253 of the Supreme Court Act 1995, an appeal against such an order may be brought only with the leave of the Judge who made the order.  This has been recognised and confirmed in numerous cases including Re: Golden Casket Art Union Office [1995] 2 Queensland Reports 346; Theophanous and Ors v. Gillespie [2002] QCA 117; HIH Casualty and General Insurance Limited v. Dascam Pty Ltd and Ors [2002] QCA 187.

In Morrison v. Hudson [2006] QCA 170, Justice Keane, with whom the other members of the Court of Appeal agreed, approved the observation of Justice Chesterman in Emanuel Management Pty Ltd (in liq) v. Fosters Brewing Group Ltd [2003] QSC 484,

"The evident purpose of section 253 is to limit appeals as to costs only.  This is because decisions on costs afford a prime example of a discretionary judgment which Parliament has recognised should be left to the trial Judge."

Because the appellant has not sought and obtained the leave of Mr Justice Helman, this appeal must be dismissed. 

I comment in passing that it was for his Honour to so regulate the conduct of the application before him that both sides were treated fairly and according to law.  His Honour has not been shown to have failed to do so.  Further, he received only oral submissions, not oral evidence, from the appellant and, in those circumstances, he was clearly correct not to have the appellant sworn.

Questions of whether counsel for the second respondent misled his Honour, and whether both sides contributed to the Tribunal's error, go to the merits of the costs argument and would require full argument if this Court were hearing an appeal after a grant of leave by Mr Justice Helman.  The appeal should be dismissed with costs.

McMURDO P:  I agree that this appeal is incompetent for the reasons given by Justice Wilson.  I agree that the appeal should be dismissed with costs.

JERRARD JA:  I agree that the problem facing Mr Goodwin is that he has not obtained the leave of the learned Judge under s 253 of the Supreme Court Act 1995 (Qld) to appeal against the Judge's order as to costs.  And because the Judge made no order as to costs, it is not open to Mr Goodwin to argue that this Court might give leave under s 49(5) of the Judicial Review Act 1991 (Qld).  That section gives this Court power to give leave to an appeal against a Costs Order made under s 49 of that Act, but the learned Judge did not make such an order.  Accordingly, whatever possible merits Mr Goodwin may have, and he complains that he should not have to have paid for the cost of correcting the referee, the fact is that he needed to get the leave of the Judge from whose order he appealed and he has not.

McMURDO P:  The order is the appeal is dismissed with costs.  Adjourn the Court, thank you.

Close

Editorial Notes

  • Published Case Name:

    Goodwin v O'Driscoll & Anor

  • Shortened Case Name:

    Goodwin v O'Driscoll

  • MNC:

    [2007] QCA 108

  • Court:

    QCA

  • Judge(s):

    McMurdo P, Jerrard JA, Wilson J

  • Date:

    02 Apr 2007

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2006] QSC 28704 Oct 2006Judicial review of small claims tribunal decision; tribunal did not have power to make order and parties agree to quash order; no order as to costs as both parties partly responsible for the original orders being made: Helman J.
Appeal Determined (QCA)[2007] QCA 10802 Apr 2007Appeal dismissed with costs; appeal against cost order of Helman J in judicial review proceeding; no leave from Helman J was sought to appeal cost order: McMurdo P, Jerrard JA and Wilson J.
Appeal Determined (QCA)[2008] QCA 4307 Mar 2008Application to have costs fixed by the court; costs fixed following setting aside original cost order to take advantage of UCPR amendments to cost assessments: McMurdo P and Wilson J.

Appeal Status

Appeal Determined (QCA)

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