Thompson v Macmillan[2023] QCA 183

SUPREME COURT OF QUEENSLAND

1. [1]
   BOND JA:  In order to convert a costs order in her favour into a money order in her favour the present respondent (the sixth defendant)^[1] took the following steps:

   1. she served a costs statement on the present appellant (the plaintiff);
   2. she filed an application for orders that a costs assessment be completed and that a costs assessor be appointed to assess the costs;
   3. she obtained orders to that effect;
   4. she obtained a costs certificate from the costs assessor;
   5. she obtained an order based on that certificate that the plaintiff pay her a money sum for costs.
2. [2]
   There is nothing remarkable in that recitation of the procedural steps by which a party having the benefit of a costs order might eventually obtain an order that the other party pay a sum of money in respect of the costs it was ordered to pay.
3. [3]
   The original costs order contained two numbered orders requiring the plaintiff to pay the sixth defendant’s costs: first, that the plaintiff pay the first and sixth defendants’ costs of a particular application on an indemnity basis (order 33); and, second, that otherwise the plaintiff pay the sixth defendant’s costs of the proceeding on the standard basis (order 35).  The sixth defendant’s solicitors sought only to have assessed the costs which were the subject of order 33, postponing to a later time the taking of that course in relation to the costs which were the subject of order 35.
4. [4]
   Although they had made that intention clear in correspondence to both the plaintiff and the costs assessor, they had erroneously not made it clear in the wording of the formal documents which they had prepared.  The result was that although the eventual costs certificate and the corresponding money order identified money sums to be paid by the plaintiff to the sixth defendant, each was worded in such a way as to suggest that the money sum was to be regarded as the sixth defendant’s entire entitlement pursuant to the original costs order.
5. [5]
   When the sixth defendant subsequently sought to embark upon the relevant procedural steps to obtain a money order in relation to the costs the subject of order 35, she was met with the objection that all the costs had already been assessed and made the subject of an order.  To remedy the position, the sixth defendant applied for:

   1. an order under Uniform Civil Procedure Rules 1999 (UCPR) r 388(2) correcting the costs assessor’s certificate so that it was on its face an assessment only of the costs the subject of order 33; and
   2. an order under UCPR r 388(2) or alternatively r 667(2)(d) correcting the money order for costs so that it too was limited to the costs the subject of order 33.
6. [6]
   The primary judge made orders consistent with those which the sixth defendant had sought.  By the present appeal, the plaintiff seeks to reverse that outcome.
7. [7]
   For the following reasons, the appeal should be dismissed.

Factual background

8. [8]
   On 12 February 2016, Mullins J (as her Honour then was) made orders including the following numbered paragraphs:

“33. The plaintiff pay the costs of the first and sixth defendants of the application filed on 27 January 2016 on an indemnity basis.

…

35. The plaintiff otherwise pay the costs of the proceeding of the fifth, sixth and seventh defendants on the standard basis.”

9. [9]
   On 2 April 2020, the sixth defendant served a costs statement on the plaintiff under cover of an email dated 2 April 2020 from her solicitors to the plaintiff.  The email referred to the order of Mullins J; quoted order 33 in full; made no reference to order 35; and attached by way of service “a Cost Statement pursuant to [UCPR r 705] which has been drafted and then settled by an expert cost assessor on the indemnity basis”.  The enclosed costs statement stated that the authority for the assessment of the costs was the order of the Court by Mullins J made on 12 February 2016.
10. [10]
    On 3 July 2020 the plaintiff filed his notice of objection to the costs claimed by the costs statement served on 2 April 2020.  The content of the objections advanced in his notice revealed that he was not in any doubt that the costs statement was limited to identifying the costs said to be recoverable pursuant to order 33 and that it did not seek to identify costs recoverable pursuant to order 35.  Without seeking to be exhaustive, the following observations can be made:

    1. Objection 4 was said to relate to all items in the cost statement and suggested “some of the steps claimed in the costs statement do not relate to the application which is the subject of Justice Mullins' order of 12 February 2016 but that fact may not be apparent from the description in the costs statement.”
    2. Objection 14 was said to relate to a multiplicity of items and suggested “[t]hese items are not captured within the order that ‘[t]he plaintiff pay the costs of the first and sixth defendants of the application filed on 27 January 2016 on an indemnity basis’.”
    3. Objection 24 was also said to relate to a multiplicity of items and suggested “[t]hese items are properly characterised as costs of the proceeding not a cost of the application to strike out … As it is a cost of the proceeding not the application to strike out, it is unreasonable to include it within the terms of the order to pay ‘costs of the first and sixth defendants application filed on 27 January 2016 on an indemnity basis.’”
    4. Similarly, objections 31 to 39 related to discrete items and also advanced the objection “[t]his was simply a cost of the proceeding not ‘costs of the application filed on 27 January 2016’ and not reasonably claimed here.”
11. [11]
    In oral argument before this Court, and after relevant parts of his notice of objection were drawn to his attention, the plaintiff conceded that, contrary to the position taken in his notice of appeal and his written submissions, he could not contend that he had been in any doubt that the sixth defendant’s intention was to seek an assessment only of the costs the subject of order 33.
12. [12]
    On 6 July 2020, the sixth defendant filed an application against the plaintiff for the following orders:

    1. that a costs assessment be completed pursuant to UCPR r 710 in respect to the costs order against the plaintiff to the benefit of the sixth defendant ordered by Mullins J dated 12 February 2016;^[2] and
    2. that the registrar appoint a costs assessor to assess costs under UCPR r 713 in respect to the costs order against the plaintiff, ordered by Mullins J dated 12 February 2016, and the costs statement served on the plaintiff by the sixth defendant on 2 April 2020.
13. [13]
    It may be observed that on its face the sixth defendant’s application dealt with all the costs which the plaintiff was ordered to pay to the sixth defendant by the order of Mullins J dated 12 February 2016.  Or, to put it another way, on its face the application was not confined to the costs which were payable pursuant to order 33.  This was the first error made by the sixth defendant’s solicitors.  After “ordered by” in each subparagraph, they should have specified “order 33 of the orders of”.
14. [14]
    By order on 5 August 2020, pursuant to UCPR rr 710 and 713 the registrar appointed an approved costs assessor to conduct the assessment of the sixth defendant's costs payable by the plaintiff pursuant to the order of Mullins J made on 12 February 2016 at a nominated hourly rate.  On its face the order dealt with all the costs which the plaintiff was ordered to pay to the sixth defendant by the order of Mullins J dated 12 February 2016.  Or, to put it another way, on its face the order was not confined to the costs which were payable pursuant to order 33.  This wording was obviously consistent with the relevant part of the wording of the sixth defendant’s application.
15. [15]
    On 24 September 2020, the appointed costs assessor wrote to both parties identifying some issues involved in the assessment he had been appointed to carry out.  Relevantly:^[3]

    1. He noted that the order of Mullins J had contained the two parts referred to at [8] above.
    2. He pointed out that the costs statement which had been presented for assessment did not include the costs that would be assessable under order 35, namely the standard costs portion of the costs which had been ordered.
    3. He invited the sixth defendant to submit a compliant costs statement for those items within 14 days to which objection could be made by the plaintiff within a further 14 days.
16. [16]
    By email to the costs assessor dated 26 September 2020 (copied to the plaintiff) the sixth defendant’s solicitor responded and requested the opportunity to make formal written submissions in response.  The email relevantly suggested that as the sixth defendant had not served a costs statement relating to order 35, no assessment of costs could be carried out for that part of the order.
17. [17]
    By email to both parties dated 7 October 2020, the costs assessor renewed his invitation to the sixth defendant to submit a costs statement for Order 35.
18. [18]
    On 8 October 2020, the solicitor for the sixth defendant sent an email to the costs assessor (copied to the plaintiff) attaching submissions in respect of the costs assessment.  Amongst other things, the written submissions suggested that the costs statement which was before the assessor for assessment related only to the costs the subject of order 33 and the sixth defendant had not yet made any application concerning her entitlement to costs pursuant to order 35.
19. [19]
    On 17 November 2020, the costs assessor wrote to the sixth defendant’s solicitors attaching a document entitled “Cost Assessor's Reasons”.  He later filed them in Court on 27 January 2021.  It was apparent from those reasons that the costs assessor accepted that the costs statement related only to the indemnity costs claimed pursuant to order 33 and that the sixth defendant had yet to pursue any claim for costs of the proceeding on a standard basis pursuant to order 35.  Otherwise, the reasons dealt only with matters of controversy concerning the claim for costs pursuant to order 33.
20. [20]
    On 4 January 2021, and following his assessment, the costs assessor filed a cost assessor's certificate dated 18 December 2020.  In that document he certified:

    1. he had been appointed to assess the costs in this matter pursuant to the Order of the registrar dated 5 August 2020;
    2. he had assessed the costs payable by plaintiff to the sixth defendant pursuant to the orders of Mullins, J dated 12 February 2016, in a particular money amount.
21. [21]
    Despite the costs assessor’s appreciation that the assessment before him was of a claim advanced in relation to order 33 only, the certificate was worded in such a way as to suggest that it dealt with all the costs which were the plaintiff was ordered to pay to the sixth defendant by the order of Mullins J dated 12 February 2016.  Or, to put it another way, on its face the certificate was not confined to the costs which were payable pursuant to order 33.
22. [22]
    It is clear that the function which the costs assessor had actually carried out was an assessment of costs claimed pursuant to order 33, including by determining the objections to the costs claimed which were advanced by a notice of objection plainly premised on the fact that the only entitlement which could be advanced was an entitlement pursuant to order 33.  The failure to confine the terms of the certificate was plainly a mistake by the costs assessor.  Consistently with the evident intention of the sixth defendant, of the plaintiff, and his own appreciation of his task as evidenced by his earlier reasons, the costs assessor ought to have expressed the certificate in a way which was confined to order 33.
23. [23]
    On 11 January 2021, the deputy registrar ordered the plaintiff to pay the sixth defendant’s costs pursuant to the order of Mullins J dated 12 February 2016 and the costs assessor’s certificate filed 4 January 2021 in the amount the subject of the certificate.  That document too was worded in such a way as to suggest that it dealt with all the costs which the plaintiff was ordered to pay to the sixth defendant by the order of Mullins J dated 12 February 2016.  It too was not confined to the costs which were payable pursuant to order 33.  Given the mistaken wording of the certificate it is understandable that the same wording found its way into the order by the deputy registrar.  It is nevertheless still appropriate to characterise the wording as relevantly mistaken.
24. [24]
    On 7 December 2021, the sixth defendant’s solicitor sought to embark upon the procedure for assessment of costs which were payable pursuant to order 35.  Ultimately, that process was stymied when, on 21 February 2022, the registrar refused to appoint a costs assessor on the basis that the Court record comprised in the 5 August 2020 order, the 18 December 2020 costs assessor’s certificate and the 11 January 2021 costs order showed that the costs of the applicant pursuant to the order of Mullins J made on 12 February 2016 had already been assessed.
25. [25]
    The sixth defendant filed the application referred to at [5] above, on 15 March 2022.

The primary judge’s reasons and order

26. [26]
    Having identified the mistake which the sixth defendant’s solicitors had made, the primary judge concluded that it was capable of amendment by operation of the slip rule.
27. [27]
    The critical part of his Honour’s reasoning was expressed in the following terms:^[4]

“That was a mistake, because if the [sixth defendant] wished to confine the orders for assessment and appointment of a costs assessor, and for the certificate of the costs assessor and the consequential costs order, to Order 33, the application of 13 July 2020 should have been made only in respect of the costs ordered to be paid by Order 33, but it was not. After the August 2020 order was made for the assessment and appointment of the assessor, the mistake was persisted in even though in effect it was drawn to the attention of the [sixth defendant’s] solicitors before the costs assessor completed the assessment and in the face of the costs assessor’s invitation to serve a costs statement for the Order 35 costs.

Cognate rules to the Queensland slip rule that apply in the case of clerical mistakes in an order or certificate have been interpreted many times. The authorities that inform the rule’s operation include a statement that the rule extends to authorise an omission from an order or judgment resulting from the inadvertence of a party’s legal representative.^[5] Although the rule must be understood in the context of the fundamental principle favouring finality in litigation,^[6] the Court has power to correct an error of the kind described in the rule even where the error arose from the inadvertence of a party’s legal representative.^[7]

Accordingly, in my view, the Court has power to make the orders applied for as clerical mistakes in an order or certificate that resulted from an accidental slip or omission.

In the present circumstances, there is no reason why such an order should not be made, if there is jurisdiction, apart from the persistence of the applicant’s lawyers in the error after being alerted to its existence in September 2020. The [plaintiff] has not been in any doubt that the application for a costs assessment originally made was intended to be for Order 33, because the email that covered the costs statement served on 2 April 2020 clearly identified that paragraph of Mullins J’s order. That point was reinforced on 7 December 2021, by the email that covered service of the costs statement for Order 35. There was delay from July 2020 to December 2021 in the [sixth defendant] proceeding upon Order 35, but it does not on the evidence appear to have caused any actual prejudice to the [plaintiff].”

28. [28]
    Based on that reasoning, the primary judge ordered that –

    1. the cost assessor’s certificate dated 18 December 2020 be corrected by adding “order 33 of” before “the Orders” at paragraph 4;
    2. the registrar’s order dated 11 January 2021 be corrected by adding “order 33 of” before “the order”,

thereby ensuring that both the certificate and the order were confined to the costs which were the subject of order 33 of the orders made by Mullins J on 12 February 2016.

Consideration of the grounds of appeal

29. [29]
    In reaching the conclusion that this was an appropriate case for the application of the slip rule, the primary judge was right for the reasons recorded in the above quote from his Honour’s judgment.  The plaintiff’s challenge to his Honour’s orders is without merit.
30. [30]
    The plaintiff’s notice of appeal raised 19 grounds of appeal.  By the time the appeal came on for argument many of them had been struck out by order of the Court.  The remaining grounds are dealt with under separate headings below.

Grounds 1 and 3

31. [31]
    The plaintiff contended the primary judge erred in law through having provided inadequate reasons for his decision.  He complained that the primary judge had neither identified nor specifically resolved his arguments that (footnotes omitted) –

“

• Nowhere does the costs statement served on 2 April 2020 state that this costs statement is confined to order 33.
• The application for costs assessment filed 13 July 2020 is not confined to order 33.
• The costs assessor made no clerical error in his certificate.
• The costs assessor does not have the power to limit the scope of his assessment.
• Nowhere does the costs assessor state that he is changing the scope of the assessment that he has been ordered to do.
• There is no indication that Mr Thompson understood that the costs assessment undertaken in the second half of 2020 was intended only with respect to order 33.”

32. [32]
    Save that the primary judge had not recorded the details discernible in the notice of objection as has been done above, his reasons had identified and dealt with all the facts recorded above and, having done so, expressed his views that the slip rule applied in the terms already recorded.
33. [33]
    The primary judge was astute to the facts identified in the first and second dot points.  His conclusion that there were clerical mistakes in the certificate and the order was not only open to him but obviously right.  The observations concerning scope in the fourth and fifth dot point were irrelevant.  The point made in the final dot point was dealt with in the primary judge’s reasons because he made a factual finding to the contrary.
34. [34]
    The plaintiff suggested that a number of issues had been the subject of discussion during the course of the oral argument before the primary judge and that the reasons were flawed because they failed to record and deal with the detail of what was discussed.  But the duty to give reasons does not extend so far.  As Henry J (with whom Fraser and McMurdo JA agreed) recently observed in this Court, “[m]erely demonstrating an argument by a losing party was not addressed in the reasons for judgment will not ground error, it being the relative significance of the argument to the resolution of the determinative issues in the case which matters”.^[8]
35. [35]
    The primary judge’s reasons expressed a sufficient exegesis of the resolution of the determinative issues in the case before him.  The reasons dealt with all matters of relative significance.  Grounds 1 and 3 fail.

Ground 5

36. [36]
    The plaintiff contended the primary judge’s reasons fail to establish that any of the three conditions precedent of “a clerical mistake in an order or certificate”, “an error in a record of an order or a certificate”, or “the mistake or error resulted from an accidental slip or omission” existed in this instance.
37. [37]
    This ground sought to establish that the primary judge had erroneously concluded that the slip rule could apply to the circumstances before him.
38. [38]
    The primary judge made no such error.  He correctly identified that the source of the problem was the original mistake by the sixth defendant’s solicitors in failing to word the application of 13 July 2020 so that it applied only to the costs ordered to be paid by order 33.  As mentioned earlier, consistent with the evident intention of the sixth defendant, of the plaintiff, and the costs assessor’s own appreciation of his task as evidenced by his earlier reasons, the costs assessor ought to have expressed the certificate in a way which was confined to order 33.  It was open to the primary judge to conclude that that mistake was a clerical mistake in the certificate and that it resulted from the original mistake made by the sixth defendant’s solicitors.  For the same reasons it was open to him to reach the same conclusion in relation to the wording of the subsequent costs order.
39. [39]
    Ground 5 fails.

Ground 11

40. [40]
    The plaintiff contended the primary judge erred in law by having failed to take into account a material consideration.
41. [41]
    The plaintiff was unable to identify to this Court any evidence before the primary judge which demonstrated any relevant change of position such as might make it unjust for the primary judge to have exercised the power he did.  He was unable to identify evidence of any material consideration which the primary judge failed to take into account.
42. [42]
    Ground 11 fails.

Ground 12

43. [43]
    The plaintiff contended the primary judge’s finding that “[t]he [plaintiff] has not been in any doubt that the application for a costs assessment originally made was intended to be for Order 33” constituted a material error of fact.
44. [44]
    For the reasons identified at [10] and [11] above, the plaintiff’s argument was nonsense.  The finding made by the primary judge was not only open to him on the evidence before him but obviously right.
45. [45]
    Ground 12 fails.

Ground 14

46. [46]
    The plaintiff contended the wording of the costs assessor’s certificate may have accurately reflected his intention, in which case the slip rule had no application and the primary judge was mistaken in having engaged it.  In oral argument the plaintiff developed this point by suggesting that this was especially so in the absence of any affidavit evidence from the costs assessor.
47. [47]
    Affidavit evidence from the costs assessor was not needed.   For the reasons expressed at [38] above, there was sufficient evidence to justify the primary judge’s conclusion that the costs assessor must be taken to have made a clerical mistake in the wording of his certificate.
48. [48]
    Ground 14 fails.

Ground 16

49. [49]
    The plaintiff contended the primary judge failed to fully consider the overriding obligations of the parties and the court under UCPR r 5 and the lapses of time in seeking the amendments and delivering the judgment. 
50. [50]
    The primary judge did not overlook the question of delay.  His reasons reveal that he considered it specifically.  No factual error is suggested and no basis for concluding that his discretion miscarried in relation to the consideration of delay was demonstrated.
51. [51]
    Ground 16 fails.

Conclusion

52. [52]
    The appeal should be dismissed, with costs.
53. [53]
    DALTON JA:  I agree with the order proposed by Bond JA and with his reasons.
54. [54]
    COOPER J:  I agree with Bond JA.