Peabody (Wilkie Creek) Pty Ltd v Queensland Bulk Handling Pty Ltd
[2015] QCA 237
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- Peabody (Wilkie Creek) Pty Ltd v Queensland Bulk Handling Pty Ltd[2015] QCA 237
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Peabody (Wilkie Creek) Pty Ltd v Queensland Bulk Handling Pty Ltd[2015] QCA 237
Peabody (Wilkie Creek) Pty Ltd v Queensland Bulk Handling Pty Ltd[2015] QCA 237
CITATION: | Peabody (Wilkie Creek) Pty Ltd v Queensland Bulk Handling Pty Ltd [2015] QCA 237 |
PARTIES: | PEABODY (WILKIE CREEK) PTY LIMITED |
FILE NO/S: | Appeal No 2462 of 2015 SC No 6085 of 2014 |
DIVISION: | Court of Appeal |
PROCEEDING: | General Civil Appeal – Further Order |
ORIGINATING COURT: | Supreme Court at Brisbane – [2015] QSC 37 |
DELIVERED ON: | 20 November 2015 |
DELIVERED AT: | Brisbane |
HEARING DATE: | Heard on the papers |
JUDGES: | Fraser JA and Douglas and North JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made |
ORDERS: |
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CATCHWORDS: | PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – COSTS OF WHOLE ACTION – GENERALLY – where the appeal was dismissed with costs –where the respondent filed its outline of argument on 1 May 2015 and the appellant filed an outline in reply – where the respondent subsequently abandoned reliance on this outline - where the respondent filed a new outline – where the appellant filed a reply to this new outline – where the new outline was a completely different document – where the appellant incurred additional costs in preparing new reply – where respondent contends it ought not be required to pay any of the appellant’s costs – where the respondent did not explain why it filed a new outline – whether the respondent ought be ordered to pay the costs incurred in preparing the first outline in reply PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – COSTS OF WHOLE ACTION – GENERALLY – where the appeal was dismissed with costs – where the respondent seeks a variation of the costs order – where the respondent contends that the appellant be ordered to pay for the costs of the appeal including the costs of the supplementary appeal record book and the respondent’s notice of contention – where the notice of contention raised two grounds – where the Court resolved the first ground in favour of the respondent – where the Court dismissed the second ground – where the second ground was reasonably arguable – where the second ground was relatively short – where the supplementary appeal record book occupied five volumes – where many of the documents in the supplementary volumes were referred to in the respondent’s outline in support of the first ground of the notice of contention – whether the supplementary appeal book was necessary – whether the appellant is required to pay the costs of the notice of contention – whether the appellant is required to pay the costs incurred by the respondent in relation to the supplementary record PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – COSTS OF WHOLE ACTION – GENERALLY – where the appeal was dismissed with costs – where the respondent seeks a variation of the costs order – where the respondent argues that the costs order made in its favour in the Trial Division ought be varied – where the respondent argues the appellant ought be required to pay for costs of and incidental to the evidence of Brown-Kenyon – where Brown-Kenyon’s affidavit and exhibits concerned the first ground of contention – where this affidavit and exhibits comprised two volumes of the supplementary appeal record – whether the whole of the affidavit was reasonably necessary – whether this is an issue for the Court to determine Peabody (Wilkie Creek) Pty Ltd v Queensland Bulk Handling Pty Ltd [2015] QCA 202 , related |
COUNSEL: | No appearance by the appellant, the appellant’s submissions were heard on the papers No appearance by the respondent, the respondent’s submissions were heard on the papers |
SOLICITORS: | No appearance for the appellant No appearance for the respondent |
[1] FRASER JA: On 23 October 2015, the Court ordered that the unsuccessful defendant’s appeal in this matter be dismissed with costs and that parties have leave to make submissions on costs.[1] The respondent seeks a variation of the costs order, such that the appellant be ordered to pay the respondent’s costs of the appeal, including the costs of the supplementary appeal record book and the respondent’s notice of contention. The respondent also seeks an order that the costs order made in its favour in the Trial Division be varied by the addition of an order that the costs order to be paid by the defendant to the plaintiff include the costs of and incidental to the evidence of Mr Brown-Kenyon.
[2] The appellant submits that the appropriate costs order is that it pay the respondent’s costs of the appeal save that:
(a)the respondent pay the appellant’s costs thrown away by reason of the respondent abandoning reliance on its outline of argument filed 1 May 2015;
(b)the respondent pay the appellant’s costs of the notice of contention served on 10 June 2015; and
(c)there be no order as to the costs of the supplementary appeal record book.
[3] After the respondent filed the outline of argument on 1 May 2015, the appellant filed an outline of argument in reply. The respondent subsequently abandoned reliance on its outline and filed a new outline of argument, upon which it relied at the hearing of the appeal. The appellant thereafter filed an outline of argument in reply to the respondent’s new outline. The appellant contends that the respondent’s new outline was not simply a different iteration of the original outline; it was a completely different document which required the appellant to incur additional costs, including the costs of preparing and filing a new reply outline. The respondent does not contradict those contentions. It undertakes not to seek to recover from the appellant the costs of the respondent’s first outline. The respondent argues that it should not be ordered to pay any part of the appellant’s costs in circumstances in which the appellant failed on each of its arguments and the Court found that there was some force in only two of those arguments.[2] That is not persuasive in circumstances in which the respondent has not sought to explain why the outline upon which it ultimately relied in the appeal was not filed in the first instance and where the respondent’s conduct caused the appellant to incur costs in an ultimately pointless exercise. The respondent should be ordered to pay those costs.
[4] The appellant submits that it should recover the costs of the respondent’s notice of contention because the appellant was substantially successful in that respect, in that the Court was not persuaded that the first of the two grounds of contention significantly advanced the respondent’s case and the Court rejected the second ground because the respondent had not pleaded or argued it before the trial judge. The Court held that the evidence upon which the first ground of contention was based “is consistent with [the respondent’s] case” but was “not persuaded that it significantly advances that case.”[3] That ground comprehended a contention of fact, namely, that it should be inferred the appellant knew, when it contracted with the respondent that the respondent contracted at the same time and in relevantly identical terms with each of its other customers. The appellant put that contention in issue in the appeal.[4] The Court resolved that issue in favour of the respondent, finding that evidence (in the supplementary appeal record book) supported the inference advocated by the respondent.[5] With that in mind, the circumstance that the degree by which the evidence advanced the respondent’s case was held to be not significant does not justify any qualification upon the costs order in the respondent’s favour. Although the second ground of contention did not find favour with the Court, it was reasonably arguable and it involved only a relatively short point. Taking all of this into account, the extent to which the respondent is otherwise entitled to an indemnity for its costs of successfully resisting the appeal should not be eroded merely because it enjoyed only limited success upon the issues raised by its grounds of contention. It is appropriate, if only to avoid possible disputes upon this point, that the costs order be varied to make it clear that the respondent’s costs of the appeal comprehend costs in relation to its notice of contention.
[5] The appeal record book initially occupied one volume (pages 1-287). The supplementary appeal record book occupied five volumes (pages 1-2,136); the index records objections by the appellant to the inclusion in the appeal record of every document in those five volumes. Many of the documents in the supplementary appeal record book were referred to, either expressly or inferentially, in the respondent’s outline of argument as support for the first ground of the notice of contention.[6] I would accept the respondent’s argument that a supplementary appeal record book was necessary to put before the Court evidence upon which the respondent relied for the inference it advocated and which the Court accepted. In the circumstances, it is not appropriate to make an order that excludes from the costs ordered in the respondent’s favour the costs incurred by the respondent in relation to the supplementary appeal record book.
[6] The respondent submitted that, to avoid disputes, it should be ordered that its costs of the appeal include the costs of the supplementary appeal record book and that the costs order made in the Trial Division in favour of the respondent should be varied to make express reference to the costs of the evidence of Mr Brown-Kenyon (whose affidavit, with exhibits, concerned the first ground of contention and comprised two volumes of the supplementary appeal record book). I would not make either of those orders. Whilst I accept that at least many of the documents in the supplementary appeal record book were properly part of the appeal record for the reason given in the preceding paragraph, I have not considered whether or not every document in that book, or whether or not the whole of Mr Brown-Kenyon’s lengthy affidavit, was reasonably or necessarily included in the evidence adduced at trial or in the appeal record. If there are any issues between the parties about matters of that kind, those issues would be for a costs assessor to resolve.
[7] In my opinion, the appropriate orders are that:
1. The order for costs made on 23 October 2015 be vacated.
2. The appellant pay the respondent’s costs of the appeal, including costs relating to the respondent’s notice of contention, save that the respondent pay the appellant’s costs thrown away by reason of the respondent abandoning reliance on its outline of argument filed on 1 May 2015.
[8] DOUGLAS J: I agree with the costs orders proposed by Fraser JA and his Honour’s reasons for those orders.
[9] NORTH J: I agree with the reasons of Fraser JA and with the orders his Honour proposes.
Footnotes
[1] Peabody (Wilkie Creek) Pty Ltd v Queensland Bulk Handling Pty Ltd [2015] QCA 202.
[2] Peabody (Wilkie Creek) Pty Ltd v Queensland Bulk Handling Pty Ltd [2015] QCA 202, at [34], [35].
[3] Peabody (Wilkie Creek) Pty Ltd v Queensland Bulk Handling Pty Ltd [2015] QCA 202, at [44].
[4] Appellant’s outline of argument in reply, paragraph 48.
[5] [2015] QCA 202 at [43].
[6] Respondent’s outline of argument, paragraphs 24-33 and footnotes.