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- Unreported Judgment
SUPREME COURT OF QUEENSLAND
Wiggins Island Coal Export Terminal Pty Limited v Civil Mining & Construction Pty Ltd  QCA 75
WIGGINS ISLAND COAL EXPORT TERMINAL PTY LIMITED
ABN 20 131 210 038
CIVIL MINING & CONSTRUCTION PTY LTD
ABN 18 102 557 175
Appeal No 2221 of 2020
SC No 6050 of 2013
Court of Appeal
General Civil Appeal – Further Order
Supreme Court at Brisbane –  QSC 1 (Flanagan J)
16 April 2021
Heard on the papers
Holmes CJ and Philippides JA and Brown J
No order as to costs.
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INTERLOCUTORY PROCEEDINGS – COSTS RESERVED – OTHER MATTERS – where the appellant’s appeal was dismissed with costs – where the respondent had applied to strike out the appeal, arguing that it was an appeal only in relation to costs, brought without leave – where the applicant had applied to the trial judge for a declaration that leave to appeal was not required, or, in the alternative, for leave to appeal – where the question of whether leave was required was not determined on either application – where the costs of both of those applications were reserved – where the appellant contends that no order should be made in relation to the reserved costs – where the respondent submits that costs should follow the event – whether any order should be made concerning the reserved costs of the two applications
Supreme Court Act 1995 (Qld), s 253
Supreme Court of Queensland Act 1991 (Qld), s 64
Amos v Wiltshire  QCA 218, cited
ASIC v Jorgensen & Ors  QCA 20, cited
Lessbrook Pty Ltd (in liq) v Whap  2 Qd R 102;  QCA 63, cited
Virgtel Limited v Zabusky (No 2)  2 Qd R 293;  QCA 92, cited
D F Kelly QC, with S R Eggins, for the appellant
B O’Donnell QC, with D J Butler, for the respondent
Corrs Chambers Westgarth for the appellant
Thomson Geer for the respondent
- HOLMES CJ: On 29 January 2021, this court dismissed, with costs, an appeal by Wiggins Island Coal Export Terminal Pty Ltd (“Wiggins”) against costs orders and the dismissal of an application made under the slip rule. In the proceedings at first instance, the respondent, Civil Mining & Construction Pty Ltd (“Civil Mining”) and Wiggins were, respectively, claimant and counter-claimant. The appeal turned principally on whether an offer by Wiggins to settle the proceedings, both claim and counter-claim, was effective under rr 360 and 361 of the Uniform Civil Procedure Rules 1999 and whether, if not, it should be treated as a Calderbank offer.
- What remains to be determined now is what orders should be made concerning reserved costs arising from two earlier applications: the first, by Civil Mining, to strike out the appeal on the basis that it was commenced without leave, and the second, by Wiggins, to the trial judge for a declaration that leave to appeal was not required, or, in the alternative, for leave to appeal.
The applications in which costs were reserved
- Civil Mining’s application to strike out the appeal was the first in time. It maintained that the appeal was incompetent without leave, pursuant to s 64 of the Supreme Court of Queensland Act 1991, which permits the bringing of “an appeal only in relation to costs” against a trial judge’s order only by leave. Wiggins resisted the application on the basis that s 64 did not apply, so that leave was not required. However, when the matter came on for hearing, Sofronoff P intimated that he was minded to adjourn the application so that Wiggins could apply for leave to the trial judge. His Honour was concerned to avoid a situation where, if s 64 were found to apply and the appeal was struck out for want of leave, Wiggins would inevitably apply to the Court of Appeal, constituted by three members, to review that decision, while if Civil Mining were unsuccessful, it too was likely to seek such a review. Given that indication, the parties consented to the adjournment of the application, with costs reserved, on the basis that Wiggins would make an application to the trial judge, Wiggins’ counsel having indicated that it would maintain its argument that leave was not required.
- Wiggins duly made its application to the trial judge, seeking a declaration that leave was not required under s 64, because its appeal was not “only in relation to costs”, or in the alternative, seeking leave. Its first argument as to why leave was unnecessary was that the appeal extended to the trial judge’s dismissal of an application it made under the slip rule for a variation to the judgment on the counter-claim in its favour to include an amount for GST. The significance of the application was that an increase in the award would assist Wiggins in establishing that the net judgment amount bettered the amount offered. The trial judge had dismissed that application because the GST had been paid and in any event it had no relevance to the effect of the offer to settle which, as he found, (correctly, as this court decided) did not comply with the Rules. The second argument was that leave to appeal was not required because the appeal did not concern the trial judge’s exercise of discretion as to costs, but, instead, the ground of appeal was an alleged error of law. The error alleged was that his Honour was wrong in construing rr 360 and 361 so as to conclude that they did not apply to its offer of settlement and that the general discretion as to costs was enlivened.
- The trial judge did not decide the s 64 point, instead granting leave and reserving the costs to this court. His Honour’s approach was, like that of Sofronoff P, a pragmatic one: he saw no utility in determining the application for a declaration, with the result subject to appeal, in circumstances where the issues as to construction of rr 360 and 361 plainly involved questions warranting determination by an appellate court, so that leave to appeal ought to be granted.
The parties’ contentions as to the appropriate costs orders
- Wiggins submitted that the better course in relation to the costs reserved, respectively, by Sofronoff P and the trial judge was to make no order, rather than embark on the process of determining the substantive question of whether or not leave under s 64 had been required. Civil Mining, on the other hand, contended that the order should be that contemplated by r 698, that reserved costs follow the event. The application for leave to appeal was, Civil Mining said, to be regarded as part of the appeal itself, so that costs should be determined by the outcome of the appeal and Wiggins, having been unsuccessful in the appeal, should pay them. As to the strike-out application, it was Wiggins’ choice not to have Sofronoff P decide the issue of whether leave was necessary. It had taken the option of applying to the trial judge for the alternatives of a declaration or leave, which meant that the application was never determined. Its costs should now flow from the determination of the appeal itself.
- I can say at once that I do not find the last submission compelling. Civil Mining might also have sought determination of the strike-out application. Instead, both parties complied with the course which Sofronoff P proposed for practical reasons; that of itself ought not lead to Wiggins’ having to meet the costs of that application.
- If, as Sofronoff P and the trial judge considered, there was little utility in determining the s 64 point prior to the appeal, it is an entirely sterile exercise now that the appeal has been determined. Indeed, neither party sought its resolution or made submissions as to its substance. I do not, accordingly, propose to embark on it. But it is relevant to observe that there was strength in the arguments made on either side of the question, as they appear in the submissions made to the trial judge.
- Those submissions largely concerned whether s 64 should be read in the same way as its predecessor, s 253 of the Supreme Court Act 1995. Section 253 required leave to appeal in relation to any
“…order…as to costs only which by law are left to the discretion of the judge…”
In ASIC v Jorgensen & Ors, Keane JA observed that the purpose of s 253 was to impose a filter on appeals against the exercise of the costs discretion, preventing the trial judge’s balancing of discretionary considerations from being reconsidered unless the judge had first addressed the question of whether a review was warranted. His Honour repeated that observation in Virgtel Limited v Zabusky (No 2) and went on to say that it applied only where the order involved the “actual disposition of costs of proceedings”; it did not apply in that case, where the order was the refusal of a stay of execution of costs orders. Both Wiggins and Civil Mining agreed that Keane JA had enunciated the correct approach to s 253. Their ways parted, however, on the question of whether the same was true of s 64.
- Wiggins relied on the view expressed by the Court of Appeal in Lessbrook Pty Ltd (in liq) v Whap. In that case, the court held that an appeal against an order setting aside the appointment of a costs assessor did not require leave. Muir JA, delivering a judgment with which the other members of the court agreed, observed that there was no reason to suppose that the purpose of s 64 was any different from the purpose of s 253 as Keane JA had explained it. He went on to say,
“That purpose and the historical construction of like provisions as well as the explanatory notes all suggest that “in relation to” in s 64 is not apt to include a relationship which does not bear upon the exercise of a judicial discretion in making or failing to make an order as to costs”.
In Amos v Wiltshire, Muir JA, again with the agreement of the other members of the court, reiterated his view that the purpose of s 64 was the same as that of s 253, and went on to draw a distinction between an appeal “in relation to costs” and an appeal “only in relation to costs”, the latter being a more limited concept.
- Civil Mining argued that there was a material distinction between the two provisions, in that s 253 focused on the nature of the order, whereas s 64 focused on the nature of the appeal, which did not seem to have been the subject of argument in Lessbrook. Section 64, it contended, extended to any appeal which was only in relation to costs, including appeals concerning non-discretionary awards of costs. The argument in relation to the dismissal of the slip rule application was not a strong one, because clearly it was ancillary to the costs argument and would come into play only if that argument were accepted and the Court of Appeal decided to exercise the costs discretion afresh.
- As I have observed, this is not the occasion to reach a view as to which argument was correct as to the compass of s 64. There was substance to both, but the point was not, for reasons of expedition, decided. In those circumstances, where Wiggins’ argument on both the strike-out application and the application to the trial judge had some merit but remain undetermined, it is not appropriate to award the costs of those applications against it. Accordingly, I would exercise my discretion in favour of the course which Wiggins proposes and make no order as to costs.
- PHILIPPIDES JA: I agree with the order proposed by Holmes CJ for the reasons given by her Honour.
- BROWN J: I agree with the reasons for judgment of Holmes CJ and the order proposed by her Honour.
- Published Case Name:
Wiggins Island Coal Export Terminal Pty Limited v Civil Mining & Construction Pty Ltd
- Shortened Case Name:
Wiggins Island Coal Export Terminal Pty Limited v Civil Mining & Construction Pty Ltd
 QCA 75
Holmes CJ, Philippides JA, Brown J
16 Apr 2021