Tsang v Harle [No 2][2023] QCA 58

SUPREME COURT OF QUEENSLAND

1. [1]
   McMURDO JA:  I agree with Gotterson AJA.
2. [2]
   DALTON JA:  I agree with the order proposed by Gotterson AJA and with his reasons.
3. [3]
   GOTTERSON AJA:  Leave to appeal in this matter was refused by order made on 10 March 2023.  At that time, the parties were ordered to file and serve any affidavit material on which they proposed to rely with respect to costs of the application within seven days from that date and file and serve written submissions with respect to the same within 14 days therefrom.
4. [4]
   The Respondent, Mr Harle, has complied with these latter orders.  The Applicant, Mr Tsang, has filed neither affidavit material nor written submissions.
5. [5]
   The order sought by the Respondent is an order pursuant to r 703(1) of the Uniform Civil Procedure Rules 1999 (UCPR) that the Applicant pay his costs of the application on the indemnity basis.
6. [6]
   Whilst the discretion conferred by that rule is expressed in unqualified terms, it is well accepted that in order to exercise it, particular circumstances justifying a departure from the usual order for costs on the standard basis need exist.  In Westpac Banking Corporation v Jamieson & Ors,^[1] this Court described such circumstances as being where the conduct of an appeal by a party had been plainly unreasonable or where special or unusual features warranted a departure from the usual course.
7. [7]
   I am satisfied on the basis of material contained in the affidavit of Michael Anthony Coates filed on 15 March 2023 and of the content and history of the litigation that circumstances do exist here that justify the making of an order under r 703(1) and that it should be made.
8. [8]
   In the first place, the prospects of obtaining leave to appeal were very poor.  The defence of honest opinion failed on the threshold issue that the statements relied on by the appellant as opinion were statements of fact and not of opinion.  Findings to that effect had been made by Acting Magistrate Turra at trial and on appeal to the District Court by Judge Porter KC.  In each instance, the findings were supported by focussed and lucid reasoning.  The members of this Court who heard the application were unanimously of the view that those findings were correct.
9. [9]
   Secondly, no new argument was advanced by the Applicant in the written or oral submissions on the application for leave to appeal which was directed at demonstrating why those findings might have been flawed.  Thus, no such argument with measurable prospects of success was sought to be put forward to this Court at that time.
10. [10]
    Thirdly, on 9 December 2022, the Respondent made an offer to settle the application in accordance with Chapter 9 Part 5 of the UCPR.  The basis of the offer was that the Applicant discontinue the application and that there be no order as to costs.  The offer was not accepted.  In my view, given the poor prospects of success of the application, there was a degree of imprudence on the part of the Applicant in not accepting it and thereby forcing both sides to incur further costs.
11. [11]
    Finally, I note that the Respondent also relies on the fact that costs of the trial were awarded to him on an indemnity basis.  That, however, turned upon an offer made during the proceeding at first instance that was not accepted.  I would not accord that award of costs any relevance for present purposes.
12. [12]
    For the above reasons, I would propose the following order:

2. 1.The Applicant pay the Respondent’s costs of the application for leave to appeal on the indemnity basis.