Sedgwick Australia Pty Ltd v JLOC Super Pty Ltd [No 2]
[2024] QCA 260
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- Unreported Judgment
- Appeal Determined (QCA)
- Sedgwick Australia Pty Ltd v JLOC Super Pty Ltd [No 2][2024] QCA 260
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Sedgwick Australia Pty Ltd v JLOC Super Pty Ltd [No 2][2024] QCA 260
Sedgwick Australia Pty Ltd v JLOC Super Pty Ltd [No 2][2024] QCA 260
SUPREME COURT OF QUEENSLAND
CITATION: | Sedgwick Australia Pty Ltd v JLOC Super Pty Ltd [No 2] [2024] QCA 260 |
PARTIES: | SEDGWICK AUSTRALIA PTY LTD ACN 003 437 161 (appellant) v JLOC SUPER PTY LTD ACN 605 330 786 (respondent) |
FILE NO/S: | Appeal No 16103 of 2023 SC No 12417 of 2021 |
DIVISION: | Court of Appeal |
PROCEEDING: | General Civil Appeal – Further Orders |
ORIGINATING COURT: | Supreme Court at Brisbane – [2023] QSC 270 (Freeburn J) |
DELIVERED ON: | 17 December 2024 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 7 May 2024 |
JUDGES: | Bond JA, Callaghan and Crowley JJ |
ORDERS: |
|
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – ISSUES AND COUNTERCLAIMS – FAILURE IN PORTION OF CASE – where on appeal the appellant and the respondent each had partial success – where the issues on which the appellant failed were definable and severable and occupied a significant proportion of the time and effort spent on appeal – where instead of making issues-based costs in favour of the appellant and also in favour of the respondent, it was preferable to net-off the orders against each other and to order that there be no orders as to costs Nine Network Australia Pty Ltd v Wagner [2021] QCA 84, cited Speets Investment Pty Ltd v Bencol Pty Ltd (No 2) [2021] QCA 39, considered Wagners Cement Pty Ltd v Boral Resources (Qld) Pty Limited [2021] QCA 79, cited |
COUNSEL: | D P de Jersey KC for the appellant S W Couper KC, with F Y Lubett, for the respondent |
SOLICITORS: | Landers & Rogers for the appellant Turks Legal for the respondent |
- [1]BOND JA: In Sedgwick Australia Pty Ltd v JLOC Super Pty Ltd [2024] QCA 218 the Court allowed an appeal from orders made by a judge of the trial division which had dismissed a defendant’s application for orders summarily disposing of a tort case which had been pleaded against it.
- [2]The Court allowed the appeal, set aside the order made by the primary judge and in lieu thereof made an order striking out paragraphs 5A, 22AB and 22B of the statement of claim in the proceeding, but with leave to replead. The parties were directed to file written submissions on the costs orders which should be made in respect of the appeal and of the application before the primary judge.
- [3]Written submissions having now been received, the present reasons address the costs orders which should be made. They should be read against the background of the Court’s reasons on the merits of the appeal.
- [4]The principles which should be applied are those referred to in Speets Investment Pty Ltd v Bencol Pty Ltd (No 2) [2021] QCA 39 at [11] to [17], Wagners Cement Pty Ltd v Boral Resources (Qld) Pty Limited [2021] QCA 79 at [14] and Nine Network Australia Pty Ltd v Wagner [2021] QCA 84 at [12] to [14].
- [5]It is appropriate briefly to recapitulate, first, the nature of the application ultimately advanced below and, second, the extent to which each party had both success and failure in this Court.
- [6]By its amended application before the primary judge the appellant applied –
- to strike out paragraphs 1CA, 5A, 7A, 19(d), 20, 20A, 20B, 20C, 21, 22, 22A, 22AB and 22B of the statement of claim (without leave to replead) pursuant to Uniform Civil Procedure Rules 1999 (Qld) (UCPR) r 171; or alternatively,
- for the claim against Sedgwick to be summarily dismissed pursuant to UCPR r 293 because:
- (i)if there was a claim to make for defective building works, the respondent was not the proper plaintiff to make the claim; and
- (ii)no duty of care could be owed by the appellant to the respondent on the facts alleged in the statement of claim.
- (i)
- [7]In this Court:
- Appeal grounds 1 and 2 suggested the primary judge erred on the question of whether the respondent was the proper plaintiff and on the proper construction of s 12(6) of the Trusts Act 1973 (Qld). These two grounds sought to vindicate the first basis on which the appellant had sought summary dismissal. The appellant failed on those grounds.
- Appeal ground 3 suggested the primary judge erred in determining that this was not a clear case where the court should exercise its discretion to strike out the entirety of the case based on a conclusion that the alleged duty of care could not exist. This ground sought to vindicate the second basis on which the appellant had sought summary dismissal. The appellant failed on that ground.
- Appeal ground 4 suggested the primary judge erred in rejecting the attack on the adequacy of the pleading of the terms of the contract to which the appellant was allegedly a party. The appellant succeeded on this ground, which related only to paragraph 5A of the statement of claim, but the respondent was given leave to replead.
- Appeal ground 5 suggested the primary judge erred in rejecting the attack on certain paragraphs of the statement of claim based on alleged inconsistency between the statement of claim and the reply. The appellant failed on that ground.
- Appeal ground 6 suggested the primary judge erred in rejecting the attack on the adequacy of the pleading of causation. The appellant succeeded on this ground which resulted in the strike out of paragraphs 22AB and 22B, but the respondent was given leave to replead.
- [8]Both parties focussed on the implications of the extent to which they each had both success and failure in this Court. Their respective assessments of the significance of that success and failure informed the costs orders for which they contended.
- [9]The appellant contended that the principal object of the application before the primary judge was for the appellant to obtain a pleading which disclosed the respondent’s case regarding the alleged duty and regarding causation, so that the appellant could know the case it has to meet and, in turn, could be afforded procedural fairness in the proceeding. It contended that the result following the appeal was that the appellant secured that object. It sought an order that the respondent should pay its costs of the application below and of the appeal.
- [10]I reject the appellant’s characterization of the principal object of the application below. The application below sought summary dismissal of the whole proceeding on two bases. Both bases failed here and below. The pleading attack was an alternate case only. Moreover, it was an attack which failed here and below on a number of bases and which also suggested that there should not be leave to replead. The appellant’s costs argument is a significant overreach.
- [11]The respondent contends, correctly, that the issues on which the appellant failed occupied a very significant proportion of the time and effort spent on the appeal. Moreover, the issues were not alternate ways to the degree of success which the appellant ultimately achieved. The issues were, as the respondent submits, definable and severable and occupied a significant part of the proceeding. That might, as the respondent suggests, justify an issues-based costs order. The respondent does not, however seek such an order. Rather, it contends that, bearing in mind the significance and time taken on the issues on which the appellant failed, the proper orders would be there be no order as to the costs of either the appeal or of the applications below.
- [12]In Speets Investment Pty Ltd v Bencol Pty Ltd (No 2), this observation was made:
“Of course, it does not follow that an issues-based costs order should always be made in circumstances analogous to those described by McMurdo J in BHP Coal Pty Ltd v O & K Orenstein & Koppel AG (No 2). Where there are multiple issues which are determined in different directions as between the parties, a court might form an overall impression having regard to the significance of the issues, the way they were determined, and the amount of time and cost spent on them, and order one party to pay a proportion of another party’s costs as a way to reflect fairly the parties’ comparative success or failure in the outcome which was obtained. Courts often prefer to avoid the complicated form of costs assessment that would follow if different issues are determined in different directions as between the parties and costs were to be awarded in respect of issues. In this regard, in Wollongong Coal Ltd v Gujarat NRE India Pty Ltd (No 2) [2019] NSWCA 173, the New South Wales Court of Appeal observed at [9] where taking such an approach might result in a protracted assessment process:
“… It is more efficient, and fairer, for the court simply to net-off [orders for issues in different directions as between the parties], which it is entitled to do (see Day v Humphrey [2018] QCA 321 at [13] per the court). Such an assessment will, undoubtedly be ‘rough and ready’ (Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107 at [5]), and that is entirely permissible.””
- [13]The respondent’s submission as to the costs implicitly acknowledges that, whilst it might be entitled to an issues costs order in its favour, in light of the issues upon which it succeeded, so would be the appellant for the issues on which it succeeded. The “no order as to costs” submission amounts to a suggestion that the value of the order in the respondent’s favour would be at least the same as the value of an order in the appellant’s favour, thereby warranting the “no order as to costs” order on the basis of netting the two orders off. The respondent submits that the same approach should be taken in relation to the costs of the application below on the basis that the effect of the appeal is that the appellant succeeded on some of the grounds that were advanced before the primary judge but failed on other grounds that similarly failed before the primary judge.
- [14]In my view the present case is one in which an issues-based costs order might, prima facie, be justified and for the reasons suggested by the respondent. However, I agree with the respondent’s submission that the more efficient and fairer approach to costs is to make the orders for which the respondent contended.
- [15]I would make the following orders:
- No order as to the costs of the appeal.
- No order as to the costs of the application and the amended application filed on 18 September 2023 and 26 October 2023 respectively in BS12417/21.
- [16]CALLAGHAN J: I agree with Bond JA. For reasons of efficiency and fairness, I join in the orders he proposes.
- [17]CROWLEY J: I agree with Bond JA.