Doerr v Gardiner [No 2][2024] QCA 21

SUPREME COURT OF QUEENSLAND

1. [1]
   MORRISON JA and LIVESEY AJA:

Introduction

2. [2]
   At the time this Court delivered judgment on 8 August 2023, dismissing the appellant’s appeal, the respondent applied for costs to 9 February 2023 on the standard basis, and from 9 February 2023 on the indemnity basis.
3. [3]
   The application is made pursuant to paragraph 52 of the Supreme Court Practice Direction 3 of 2013.
4. [4]
   The respondents have explained their application for costs by reference to an offer made on 9 February 2023, following receipt of the appellant’s outline.
5. [5]
   The initial appeal contained 13 appeal grounds but, by the time of the appellant’s outline, these had been pared back to three grounds and a fourth ground was added concerning economic loss.^[1]  Pursuant to Calderbank v Calderbank,^[2] the respondent offered to resolve the appeal on the basis that the appellant withdrew his appeal within 7 days, whereupon the respondent would not seek her costs of the appeal to the date of her offer.
6. [6]
   The appellant did not accept the respondent’s offer.

The application for indemnity costs

7. [7]
   The respondent contended that the appeal initially involved a “scattergun” approach which, though pared back, had “little prospect of success”.  The respondent emphasised that her award included an award of aggravated damages which reflected the appellant’s improper conduct of the litigation and the trial.^[3]  The respondent effectively contended that the appellant’s improper conduct continued on appeal.
8. [8]
   The respondent relied upon Greenhalgh v Bacas Training Ltd.^[4]  In that case, the Court awarded indemnity costs, having formed the opinion that the failure to accept the offer in that case was unreasonable and imprudent.  The Court held that the unsuccessful parties chose to continue an application for leave to appeal which had “little prospect of success” and must have done so clearly understanding that “they did so at their peril so far as the costs of the application were concerned.”
9. [9]
   The Court explained that the unsuccessful parties had no good reason to expect that the successful party should be left to bear a substantial costs burden were costs to be awarded only on the standard basis.
10. [10]
    The respondent contrasted the unsuccessful application for indemnity costs in the case of Callide Power Management Pty Ltd v Callide Coalfields (Sales) Pty Ltd.^[5]  In that case, the Court rejected the application because the case concerned the interpretation of a complex commercial document.  The Court was of the opinion that the appeal in that case was “not so bereft of prospects of success that it can be said that the appellant acted unreasonably in pursuing the appeal which was available to it as of right”.

The indemnity costs application is opposed

11. [11]
    The appellant submitted that an award of costs on an indemnity basis should not be made too readily.^[6]  According to the appellant:^[7]

“In any event, the Respondent does not appear to submit that the Appellant’s conduct in pursuing the appeal was unreasonable, but instead only that it had poor prospects of success. The Appellant concedes that it was a difficult appeal given that to be successful, the findings of the primary judge would have to be overturned. The Appellant, with the benefit of hindsight, now appreciates that it would have been prudent to accept the Calderbank offer, but whether that was true could not have been determined by the Appellant without allowing the appeal to proceed.”

12. [12]
    The appellant relied on Blundstone v Johnson for the proposition that the refusal of a Calderbank offer does not inevitably result in an order for indemnity costs unless there is also some unusual feature present.^[8]  Examples given in that case included cases where the conduct of the unsuccessful party is “plainly unreasonable” or where it falls into one of the recognised categories, such as where allegations of fraud were made knowing them to be false or irrelevant to the issues in contest between the parties.^[9]
13. [13]
    The appellant contested the proposition that his conduct in pursuing the appeal was plainly unreasonable.  He contended that there was nothing unusual or differentiating about this case which would warrant a departure from the usual order that costs be assessed on the standard basis.^[10]
14. [14]
    The appellant submitted that the grounds the subject of the appeal “predominantly related” to the calculation of damages in a case where the assessment was “complex as a result of many factors”, including the impact of the Hayne Royal Commission on the respondent’s ability to return to work.  The appellant contended that he was, in effect, entitled to conclude “reasonably albeit wrongly” that he might obtain a reduction in the trial judgment.^[11]
15. [15]
    The appellant contended that the award of aggravated damages having regard to the appellant’s conduct of the trial is wholly irrelevant to whether an award for indemnity costs should be made concerning the appeal.  The appellant denied any suggestion that the conduct of the trial which was criticised by the trial judge continued on appeal.

The determination of the application

16. [16]
    The Court’s wide costs discretion is usually described as unfettered, and must be exercised judicially:^[12]

“… the general discretion is absolute and unfettered, except that it must be exercised judicially, not arbitrarily or capriciously, and that it cannot be exercised on grounds unconnected with the litigation.”

17. [17]
    The award of costs is ordinarily made having regard to the outcome of the litigation.  Where an appeal is dismissed, the successful respondent will ordinarily recover her costs of the appeal on the standard basis.
18. [18]
    Before an appeal is heard and determined few parties are in a position to predict with certainty the likely outcome of an appeal.  Some latitude must be afforded to parties in the pursuit of their legal rights.  It would be inappropriate to stifle the reasonable exercise of legal rights for fear that a party will be exposed to indemnity costs simply because that party failed to succeed on an appeal.
19. [19]
    Before costs are awarded on the indemnity basis something more than success or failure must usually be shown.  Indeed, it will usually be the case that something more than the failure to better an informal offer must be shown.  Each case must, however, depend on its particular facts and circumstances.
20. [20]
    The award of indemnity costs is, as a result, usually reserved for those cases where, viewed in prospect before the hearing, the unsuccessful party should have recognised that it had “no chance of success”.  In that kind of case the award is made on the basis that it is presumed that the litigation was pressed for some ulterior motive or because of a wilful disregard of the known facts or clearly established law.^[13]
21. [21]
    Whilst in many cases it may be inappropriate to determine costs according to the particular issues which were agitated on appeal, depending upon whether the parties succeeded or failed on those issues, that is not invariably so and there has been a greater willingness to determine costs according to particular issues:^[14]

“Whilst it is true that there are authorities deprecating the practice of ordering costs on an ‘issue by issue’ basis,^[15] the jurisdiction to order a successful party to pay costs, or at least to deprive a successful party of costs, on issues on which that party has failed is not in doubt.^[16]

Indeed, it has been said in recent times that courts are more readily prepared to modify the general approach, and to make orders having regard to ‘issues’, because the interests of justice sometimes require a reduction in the costs that might otherwise be awarded to a successful party where that party has failed on particular, disputed questions of fact or law.^[17] That approach is at times more readily apparent in cases where the issues which have been raised, and on which the successful party has failed, can be said to have unduly extended the time and expense of the litigation.^[18] That will be particularly so if there is, in addition, some sort of misconduct relating to the issue or the litigation more generally.^[19]”

22. [22]
    In this appeal, as is common with many personal injury cases, the case was clearly delineated as between liability, on the one hand, and quantum, on the other.  The appeal grounds, the evidence and the arguments referable to each were clearly distinct.  The case on liability did not depend on the case on quantum, and vice versa.  The strengths and weaknesses of each could be separately assessed and the time they occupied on appeal was also clearly delineated.
23. [23]
    As the reasons of this Court demonstrate, there were tenable arguments to be made about the approach to be taken to the assessment of damages for past and future loss of earning capacity.  In the circumstances, whilst the appellant’s appeal prospects may with hindsight be seen to have been poor, and notwithstanding the offer which was made on 9 February 2023, this is not a case in which it is appropriate to award indemnity costs on quantum.
24. [24]
    The same cannot be said for the case on liability.  As the reasons of this Court demonstrate, there was really only one point agitated on liability and it ultimately amounted to the asserted failure by the trial judge to have regard to one circumstantial issue, being the absence of motive in the appellant to engage in the wrongdoing which was the subject of detailed findings made by the trial judge.^[20]
25. [25]
    Even without the benefit of hindsight, this aspect of the appeal should in prospect have been seen to be hopeless.  There was overwhelming evidence in support of the findings made by the trial judge about what occurred together with, equally as importantly, the clearly acrimonious marital context in which the appellant engaged in the battery of the respondent.  Accordingly, it is appropriate to make an award of indemnity costs because this aspect of the case fits within one of the recognised categories: the appellant, properly advised, should have known that he had no chance of success.^[21]
26. [26]
    Whilst it might be said that this conclusion is reinforced by the offer made on 9 February 2023, that offer did not differentiate between the cases on liability and quantum.  Although the receipt of the offer ought to have provided an occasion for reflection given the considerable, and commendable, narrowing of the issues undertaken in the appellant’s outline, it cannot be said that the failure to accept the respondent’s offer was, in the circumstances of this case, both imprudent and unreasonable.  Nonetheless, this Court’s unfettered discretion as to costs is not constrained by that circumstance; even without the offer, the appellant should have recognised that his appeal on liability was hopeless.  That conclusion is sufficient to warrant an award of indemnity costs on liability from the date that claim is made, 9 February 2023.

Conclusion

27. [27]
    In the exercise of this Court’s discretion, it is appropriate to make orders as follows:

1. The appellant must pay the respondent’s costs of the appeal to 9 February 2023 on the standard basis.

2. The appellant must pay the respondent’s costs of the appeal from 9 February 2023 as follows:

2.1. On the issue of liability, on the indemnity basis.

2.2. On the issue of quantum, on the standard basis.

28. [28]
    BOND JA:  The Court delivered its judgment on the merits of the appeal in the present proceeding on 8 August 2023, the appeal having been heard on 30 May 2023.^[22]  The following reasons assume familiarity with the facts and analysis expressed in that judgment.
29. [29]
    Paragraph 52 of Practice Direction 3 of 2013 of the Supreme Court of Queensland requires that any party who wishes to make submissions or further submission on costs after the hearing of an appeal must apply for leave to do so in their written outlines of argument and/or orally at the hearing.  In relation to the appeal in the present proceeding, the respondent did not take that course.  To the contrary, in her written submissions on appeal, the respondent had submitted that the appeal should be dismissed and that the appellant should pay the respondent’s costs of the appeal.  Nothing was said to the contrary at the hearing and no leave was sought to make further submissions.
30. [30]
    Because the Court’s decision was that the appeal should be dismissed, and in light of the submissions which had been made, the Court ordered that the appeal be dismissed, with costs.  It followed from Uniform Civil Procedure Rules 1999 r 702 that any assessment of costs pursuant to such an order would be carried out on the standard basis.
31. [31]
    The respondent has since delivered written submissions seeking a variation to the costs order which had been made.  The respondent contended that the appellant should pay the respondent’s costs of the appeal to 9 February 2023 on the standard basis, but thereafter on the indemnity basis.  The sole basis on which the respondent has sought to justify that order was the appellant’s failure to accept a Calderbank offer^[23] which the respondent had made on 9 February 2023.  The respondent contended that the appellant’s failure to accept the offer was unreasonable and imprudent.
32. [32]
    In responsive written submissions the appellant resisted any change to the order.  He contended that his failure to accept the offer was not so unreasonable as to warrant an order for indemnity costs.
33. [33]
    The order sought by the respondent in relation to costs was contrary to that advanced in her written submissions.  If the respondent had wanted to advance the submissions she now has, she should not have sought the costs order she did, but should have flagged her intention to advance submissions on the question of costs in the event that the appeal was dismissed.  Strictly speaking, to make the submissions which she has now made, the respondent should be seeking the Court’s leave to re-open the appeal on the question of costs, or possibly to bring an application under the slip rule.  In Enkelmann v Stewart [No 2]^[24], this Court recently identified the considerations relevant to the exercise of that discretion.  The appellant has not sought to take that point, or to contend that there is any reason why leave would not be given if the respondent’s argument otherwise had merit.  Accordingly, it is not necessary to address the question of leave and the submissions may be dealt with as though the respondent had complied with the practice direction.
34. [34]
    I summarised the relevant principles in relation to Calderbank offers deriving from judgments of intermediate courts of appeal in S.H.A. Premier Constructions Pty Ltd v Niclin Constructions Pty Ltd (No 2) in these terms:^[25]

“The relevant considerations were identified in J & D Rigging Pty Ltd v Agripower Australia Limited [2014] QCA 23 at [5] to [6] per Holmes JA and Applegarth and Boddice JJ, and in Hadgelias Holdings and Waight v Seirlis [2014] QCA 325 at [11] to [12] per Holmes JA with whom Gotterson and Morrison JJA agreed. In each case, the Queensland Court of Appeal followed the approach taken by the Victorian Court of Appeal in Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435.

The following propositions may be distilled from those appellate decisions.

First, the usual rule is that where the Court orders the costs of one party to litigation to be paid by another party, the order is for assessment of those costs on the standard basis.^[26]

Second, the Court will depart from the usual rule where the circumstances of the case warrant that course.^[27]

Third, one feature which may justify a departure from the usual rule is the rejection of a Calderbank offer to compromise.^[28] However, it is wrong to think that an offeree’s rejection of a Calderbank offer gives rise to a presumption that the offeree should pay the offeror’s costs on an indemnity basis if the offeree obtains a less favourable result than contained in the offer.^[29] Rather, the correct approach is to consider whether the rejection of the Calderbank offer, in all the circumstances, justifies a departure from the usual rule.^[30]

Fourth, the balance between the competing policy considerations of, on the one hand, appropriately encouraging settlement and, on the other, not discouraging potential litigants from bringing their disputes to the courts, is found by applying a test of ‘reasonableness’.^[31] The policy rationale for requiring the offeree to indemnify the offeror for costs incurred after the offeree’s unreasonable rejection of an offer is that, from the time of the unreasonable rejection, notionally the real cause and occasion of the litigation is the unreasonable attitude adopted by the offeree.^[32]

Fifth, deciding the critical question of whether the offeree’s rejection of the offer is unreasonable in all the circumstances will always involve matters of judgment and impression.^[33] However, the discretion as to costs must be exercised judicially and is subject to review in accordance with the principles set out in House v The King (1936) 55 CLR 499 at 505.^[34] Without being exhaustive concerning the considerations which should be taken into account, a court should ordinarily have regard to at least the following matters:^[35]

1. the stage of the proceeding at which the offer was received;

2. the time allowed to the offeree to consider the offer;

3. the extent of the compromise offered;

4. the offeree’s prospects of success, assessed as at the date of the offer;

5. the clarity with which the terms of the offer were expressed; and

6. whether the offer foreshadowed an application for indemnity costs in the event of the offeree rejecting it.”

35. [35]
    A brief chronology must first be set out.
36. [36]
    The orders made by the primary judge were made on 11 November 2022.
37. [37]
    The notice of appeal was filed on 9 December 2022.  It alleged errors in relation to the issues of liability, quantum and costs.  Appeal ground 1 addressed the issue of liability and advanced grounds (a) to (e).  Appeal ground 2 addressed the issue of quantum and advanced grounds (a) to (g).  Appeal ground 3 advanced a single ground in relation to the issue of costs.
38. [38]
    The appellant’s written outline of argument was dated 3 February 2023.  It was signed by senior counsel on behalf of the appellant.  It abandoned appeal grounds 1(a), (d) and (e); appeal grounds 2(a) (d), (e), (f) and (g) and appeal ground 3.
39. [39]
    The respondent’s solicitors sent the Calderbank offer shortly after the appeal was so narrowed.  The offer was in these terms:

“This letter is made and sent without prejudice except that the Respondent retains the right to tender a copy of this correspondence to the Court in support of an Application for Costs including costs on an indemnity basis.

Respectively, by reference to the Notice of Appeal as truncated and in conjunction with the Appellant’s written Submissions, it is considered that the Appeal has little prospect of success.

The purpose of this letter is to make offer that if the appeal is withdrawn within the next seven (7) days, namely by close of business on Friday, 17 February, 2023, our client/the Respondent will not seek costs of the Appeal. Already, the Respondent has incurred costs related to preparations connected to the Appeal. If your client now withdraws the Appeal within the time requested by this offer, then our client will not seek her costs of the Appeal.

In the event that the Appeal is maintained by your client/Appellant and fails, the Respondent will seek costs from your client on an indemnity basis.

The Offer made in this letter is pursuant to the Calderbank authority [principles].”

40. [40]
    The offer was not accepted within the 7 days allowed for that to occur.  The respondent provided its written outline of argument on 24 February 2023.  And, as mentioned, the appeal was argued 29 May 2023.  By the time of argument, the appeal grounds had narrowed still further.
41. [41]
    Against that chronological background, the considerations identified at [34] above may be specifically addressed.
42. [42]
    First, it may be observed that the offer was sent after senior counsel had formulated the appellant’s outline of argument and abandoned many of the grounds which had initially been advanced.  It must be inferred that the appellant had had an opportunity to form a view of the merits of his argument on appeal.  On the other hand, the appellant had not yet had received the respondent’s outline of argument on appeal.  The costs involved in having that prepared were no doubt part of the very costs which the respondent was seeking to avoid by making the offer.
43. [43]
    Second, the time allowed for the appellant to consider the offer was 7 days.  In context that seems to me to be a reasonable time.
44. [44]
    Third, the compromise offered was effectively a walk away offer.  It offered to give away the costs exposure which the appellant might have had for costs incurred in the appeal to the time the offer was sent.  The letter asserted that some costs had been incurred, and there is no reason to disbelieve that proposition.  One would normally expect some review of the respondent’s exposure on appeal in response to the notice of appeal and the outline of argument would have been done by that time.  The elimination of that exposure would have been thought to have some worth.
45. [45]
    Fourth, the offer was expressed in clear terms and foreshadowed an application for indemnity costs in the event of the offeree rejecting it.  Notably, however, it did not differentiate between the issues which had been the subject of the appeal.  The only way in which the offer could be accepted was to abandon the entire appeal.
46. [46]
    Finally, it is necessary to address the offeree’s prospects of success, assessed as at the date of the offer.
47. [47]
    It must first be observed that the offer did not descend to any specificity as to why the appellant should accept the offer.  All the offer did was assert that having regard to the notice of appeal and the appellant’s written submissions, “the Appeal has little prospect of success.”  That is not necessarily an insurmountable obstacle to the respondent’s present contention.  In Hazeldene’s Chicken Farm the Victorian Court of Appeal stated:^[36]

“It has been argued on occasion that the maker of a Calderbank offer should not be entitled to costs unless the offer sets out, with some reasonable specificity, the basis for the offeror’s contention that the offeree should accept the compromise – for example, because the offeree’s case was hopeless or because the offeree had no reasonable prospects of doing better in the proceeding than was being offered in advance.

Once again, we think it neither necessary nor desirable to lay down any general rule in this regard.  We agree with what Redlich J said in [Aljade and MKIC v OCBC [2004] VSC 351 at [87]], as follows:

1. Any attempt to prescribe the reasoning which must accompany [a Calderbank] offer should be resisted. Whether there is a need for the offeror to descend to specificity as to why the offer should be accepted must depend upon a consideration of all of the circumstances existing at the time of the offer. The extent to which the weakness of a party’s position is exposed through the pleadings, affidavits and the various communications between the parties during the course of the litigation may bear upon the significance of the absence of specificity in the informal offer.”

48. [48]
    In my view the appellant’s prospects of success on liability were always very poor and should always have been known to be very poor.  As must be apparent from a consideration of this Court’s reasons on that part of the appeal, the appellant needed to overturn facts found by the primary judge.  The primary judge’s reasons revealed that he had made a careful and detailed assessment of the evidence and his findings in large part turned on his evaluation of the credibility and reliability of witnesses.  The difficulties facing an appellant on such an appeal are well known.  The appellant had no viable basis on which it could challenge the primary judge’s conclusion on liability.  As at the time the offer was received the appellant should have known that.
49. [49]
    The same cannot be said of the appeal in relation to quantum.  Again, as must be apparent from a consideration of this Court’s reasons on that part of the appeal, the appellant did present arguments which were worthy of consideration on the assessment of quantum.  In retrospect one might well say that it could not be said that the prospects of success were good.  But they were at least arguable.
50. [50]
    The question for resolution on the respondent’s argument is whether, having regard to the foregoing discussion, this Court should conclude that the rejection of the Calderbank offer, in all the circumstances, justifies a departure from the usual rule.
51. [51]
    The prosecution of the liability appeal may be validly criticised.  Indeed, so poor was that aspect of the appeal, that there might have been something to be said for an application for indemnity costs in relation to that issue alone.  But no such application has been made.  The Calderbank offer did not differentiate between issues.  Acceptance of the offer would have required abandoning the whole appeal, not just the appeal on liability.  Given the nature of the arguments which were available on quantum and the relatively narrow extent of the offer made, I am unable to reach the conclusion that it was unreasonable and imprudent to reject an offer which would have required an arguable appeal to be abandoned.
52. [52]
    It follows that I am not persuaded that the appellant’s rejection of the Calderbank offer justifies a departure from the usual rule.  I would not vary the order for costs made on 8 August 2023.  The respondent’s application to do so should be dismissed.