Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc [No 2]
[2025] QCA 88
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Appeal Determined (QCA)
- Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc [No 2][2025] QCA 88
- Add to List
Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc [No 2][2025] QCA 88
Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc [No 2][2025] QCA 88
SUPREME COURT OF QUEENSLAND
CITATION: | Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc [No 2] [2025] QCA 88 |
PARTIES: | JAMES BOYD THOMPSON (appellant) v CAVALIER KING CHARLES SPANIEL RESCUE (QLD) INC (respondent) |
FILE NO/S: | Appeal No 16231 of 2024 SC No 12173 of 2018 |
DIVISION: | Court of Appeal |
PROCEEDING: | Further Orders – Costs |
ORIGINATING COURT: | Supreme Court at Brisbane – [2024] QSC 250 (Treston J) |
DELIVERED ON: | 30 May 2025 |
DELIVERED AT: | Brisbane |
HEARING DATE: | Heard on the papers |
JUDGES: | Bond, Flanagan and Bradley JJA |
ORDER: | The appellant pay the respondent’s costs of the appeal, including the costs of the application filed 28 April 2025, fixed in the sum of $22,000. |
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – where the appellant appealed from an interlocutory decision – where the appeal was dismissed – where costs follow the event – where there is an extensive history of litigation between the parties about the assessment of costs – whether the amount of the costs should be fixed by the Court Barristers’ Conduct Rules, r 15 Uniform Civil Procedure Rules 1999 (Qld), r 5, r 687 Amos v Monsour Pty Ltd [2009] 2 Qd R 303; [2009] QCA 65, followed |
COUNSEL: | The appellant appeared on his own behalf C D Templeton for the respondent |
SOLICITORS: | The appellant appeared on his own behalf ACLG Lawyers for the respondent |
- [1]BOND JA: I agree with the reasons for judgment of Bradley JA and with the order proposed by his Honour.
- [2]FLANAGAN JA: I agree with Bradley JA.
- [3]BRADLEY JA: On 7 May 2025, the Court made orders dismissing the appellant’s appeal and gave the parties leave to file short written submissions on costs.
- [4]On 14 May 2025, the appellant filed written submissions, contending that there existed no grounds for the Court to “depart from the usual rule that costs be ordered on the standard basis.”
- [5]On 15 May 2025, the respondent filed written submissions, contending that the Court should order that the appellant pay the respondent’s costs of the appeal, including an application filed by the appellant on 28 April 2025, and that the Court should fix those costs in the amount of $22,000.
- [6]On 19 May 2025, the appellant filed written submissions in reply, contending that the appellant “should be permitted to have the opportunity for the costs to be assessed properly.”
- [7]It seems to be common ground that the unsuccessful appellant should pay the respondent’s costs of the appeal and that those costs should be ordered on the standard basis rather than an indemnity basis. The remaining issue is whether the Court should fix those costs and, if so, in what amount.
Fixing costs
- [8]The power of the Court to fix costs is conferred by r 687(2)(c) of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR). Here is r 687 in its entirety:
“687 Assessed costs to be paid unless court orders otherwise
- If, under these rules or an order of the court, a party is entitled to costs, the costs are to be assessed costs.
- However, instead of assessed costs, the court may order a party to pay to another party—
- a specified part or percentage of assessed costs; or
- assessed costs to or from a specified stage of the proceeding; or
- an amount for costs fixed by the court; or
- an amount for costs to be decided in the way the court directs.”
- [9]
“UCPR draws a clear distinction between an assessment of costs and the process of fixing costs under r 687(2)(c). Whilst both processes require that procedural fairness be afforded to the parties, the latter is intended to be relatively speedy and inexpensive. What Giles JA said in Harrison & Another v Schipp [(2002) 54 NSWLR 738, 743] about the specification of costs under the similar provision in r 6(2) of the New South Wales Supreme Court Rules 1970 applies with equal force to the fixing of costs under r 687(2)(c):
“Of its nature, specification of a gross sum is not the result of a process of taxation or assessment of costs. As was said in Beach Petroleum NL v Johnson [(1995) 57 FCR 119] (at 124), the gross sum ‘can only be fixed broadly having regard to the information before the Court’; in Hadid v Lenfest Communications Inc [[2000] FCA 628] (at [35]) it was said that the evidence enabled fixing a gross sum ‘only if I apply a much broader brush than would be applied on taxation, but that... is what the rule contemplates’. The approach taken to estimate costs must be logical, fair and reasonable (Beach Petroleum NL v Johnson (at 123); Hadid v Lenfest Communications Inc (at [27])). The power should only be exercised when the Court considers that it can do so fairly between the parties, and that includes sufficient confidence in arriving at an appropriate sum on the materials available (Wentworth v Wentworth (Court of Appeal, 21 February 1996, unreported) per Clarke JA).”[2]
- [10]It follows that the Court should consider whether a logical, fair and reasonable estimate of the costs can be made. This requires an evaluation of the material before the Court, to determine whether the Court can be sufficiently confident that an appropriate sum can be fixed, which is fair between the parties.
- [11]As ever, in applying the Uniform Civil Procedure Rules 1999 (Qld), the Court should consider r 5 and the objective of avoiding undue delay, expense and technicality and facilitating the just and expeditious resolution of the real issues at a minimum of expense.
The material before the Court
- [12]Mr Delaney, a solicitor from the respondent’s solicitors, deposed to the steps in the appeal, the professional work he undertook, and a small amount of work undertaken by a clerk. The appellant did not dispute these steps or that this work was undertaken.
Solicitors’ tax invoice
- [13]The respondent produced a tax invoice from its solicitors dated 13 May 2025. It itemised the work performed by the firm and the costs charged for each item. It specified the time the solicitor and the clerk spent performing the item of work in six-minute units.
- [14]The solicitors’ tax invoice was not in the form of a “bill of costs”. It did not identify an item in the Supreme Court scale of costs for each item of work. However, a document like the solicitors’ tax invoice is often used to help the Court estimate past and future costs in applications for security for costs.[3] In form and detail, it reflected something of the traditional taxation or costs assessment process. It provided a degree of transparency and facilitated consideration of individual work items by reference to objective criteria, including the scale.
- [15]There are 127 items in the tax invoice. They are in chronological order. The first are seven items on 9 December 2024, which comprise 2.8 hours of work by the solicitor. This work is reading and considering correspondence from the Court Registrar, the notice of appeal, and the judgment the subject of the appeal, attending the respondent’s representative to inform them of the appeal, explain the grounds and receive instructions to oppose the appeal, reading an email from the appellant and drafting an email to counsel.
- [16]After these, the most substantial items are 4 hours for reading and considering the appellant’s outline of argument, his list of authorities and his draft appeal book index, 3.5 hours reading and considering the appellant’s five affidavits and three of Mr Delaney’s affidavits, on which the respondent intended to rely, including annotating these for counsel, and 2.5 hours attending court to instruct counsel at the hearing of the appeal. There was also a charge for 1.5 hours drafting an outline of argument for the hearing of the appellant’s application to reopen the appeal for further submissions.[4]
- [17]Most of the other items in the tax invoice are for communications with the registry, the appellant, and the respondent’s counsel about the appeal.
- [18]The last three items on the tax invoice are for 13 May 2025, which comprise 2.3 hours of work by the solicitor. This work was reading an email from counsel with draft submissions on costs, reading and considering counsel’s draft submissions on costs, and drafting and finalising a supporting affidavit.
- [19]Mr Delaney deposed that the costs incurred by the respondent in having its solicitors do the work identified in the solicitors’ tax invoice were reasonable. This opinion was based on the issues in dispute, the material relied on by each party and the nature of the work undertaken.
- [20]Mr Delaney deposed that, based on his experience, he would expect the respondent would recover 65% of its total costs on an assessment under a standard costs order.
- [21]Of the 127 items in the tax invoice, the appellant challenged specifically the amount charged for five. The total amount charged for these items was $1,980.00 or about 9 per cent of all solicitors’ work charges. The appellant submitted that, if calculated in accordance with the Court scale of costs, the total amount for these five items would be $1,141.37. This would be a reduction to about 58% of the amount charged.
- [22]The respondent explained the items he challenged were “examples only” and not an “exhaustive list.” No explanation was offered as to how he chose the five example items or why he challenged no other item specifically.
Counsel’s tax invoice
- [23]The respondent also produced a tax invoice from its counsel, dated 13 May 2025. It itemised the work performed by counsel and the amount charged for each item of work. It specified the time counsel spent performing the item of work in minutes, hours or days, depending on the task. In the tax invoice, counsel’s fees were calculated as $400 per hour and $4,000 per day, in each case plus GST.
- [24]Counsel’s tax invoice was in the form usually submitted in cost assessments to substantiate such outlays.
- [25]There are seven items in counsel’s tax invoice. The first three items are for reading the notice of appeal and appellant’s outline, drafting the respondent’s outline, and amending it to include the appeal record book references. The amount charged amounts to less than one and quarter days’ work. The next three items are for preparing for the appeal and appearing at the appeal hearing. The amount charged amounts to one and a half days’ work. The final item is for 30 minutes drafting submissions on costs.
- [26]The tax invoice includes no items for work by counsel from 9 December 2024, when the respondent’s solicitors first communicated with counsel about the appeal, to and including 1 April 2025, when the solicitors communicated with counsel about changes to the appeal timetable. The absence of items for the work counsel did over this period betrays a sensible modesty on the part of counsel in formulating the tax invoice.
- [27]Mr Delaney deposed that counsel’s tax invoice was reasonable as a disbursement incurred by the respondent. This opinion was based on the issues in dispute, the material relied on by each party and the nature of the work undertaken.
- [28]The appellant contended that the professional fees charged by counsel should be reduced to the scale amounts for work by a solicitor. This contention was advanced on the basis that counsel was a legal practitioner and so an Australian lawyer.
Mr Delaney’s opinion
- [29]Although Mr Delaney’s views were plainly opinion evidence, the appellant did not object to the Court considering the evidence on that basis. Rather, the appellant challenged Mr Delaney’s expertise in respect of costs.
- [30]Mr Delaney has degrees in law and commerce, in the latter respect majoring in accounting. He was a deputy registrar and deputy sheriff of the Court in 2005. In that capacity, he assessed or taxed costs under costs orders of the Court and the District Court. He has been a legal practitioner since his admission in 2006. In that capacity, he has practised in commercial litigation for more than 17 years. His experience in the conduct of legal proceedings has included specific reference to the costs of running legal proceedings in this Court and in the District Court. Since January 2022, Mr Delaney has been involved as a solicitor in eleven cost assessments in the Court and the District Court. Since January 2010, he has been involved in approximately 31 cost assessments in this Court, the Federal Court, the District Court and the Magistrates Court.
- [31]The appellant challenged Mr Delaney’s expertise on the basis that Mr Delaney “routinely” presents a draft costs statement to a registered costs assessor for “settling”. The appellant contended that this indicated Mr Delaney “lacks confidence in his own professional expertise with respect to costs.”
The appellant’s other contentions
- [32]On 28 April 2025, the appellant filed and served an application in the appeal proceeding. It was heard and dismissed 2 May 2025. In his submissions in reply, the appellant asserted that the costs the respondent incurred in respect of his application were “beyond the scope of the Court of Appeal order.” The appellant’s only explanation for this assertion is that when the application was dismissed “no order for costs of that application” was made.
Consideration
What is the preferable approach in the circumstances?
- [33]The subject matter of the present appeal was an amount the appellant paid to the respondent in respect of an earlier order of this Court that he pay the respondent’s costs of an earlier unsuccessful appeal. That costs order was made on 31 January 2020.[5] More than five years later, the amount of those costs is yet to be finally resolved.
- [34]Over the ensuing five years, the appellant has objected to almost all the items in the respondent’s costs statement, requested reasons from the costs assessor in respect of each of his objections that was not allowed in full, and then, after paying the assessed costs, applied to set aside the costs certificate. The appellant did not diligently pursue his application to set aside the costs certificate. It was heard more than two years after it was filed. The hearing was followed by additional submissions over four months. An order was made in September 2023.
- [35]In July 2024 the appellant filed the application that was the subject of this most recent appeal. In this Court he contended that by the application he had sought an order that the respondent repay the amount the appellant had formerly paid for the costs of his unsuccessful appeal. The learned primary judge dismissed the application on the basis that such relief was not discernible from the appellant’s application. The respondent appealed to this Court against that decision. His appeal was dismissed. The reasons of this Court dismissing the appeal make clear that there was no merit in the arguments advanced by the appellant.[6]
- [36]The appellant’s past conduct is the best indicator of his likely future conduct. If the usual order were made – that he pay the respondent’s costs of the appeal to be assessed on the standard basis – time consuming and expensive further disputation would likely follow. The process of assessment of the respondent’s costs is likely to be characterised by the same undue delays and querulous conduct that the appellant exhibited in the processes that led to the dismissal of his most recent appeal. It is certain to cause the parties to incur further costs, in what has been an appeal devoid of merit, brought in a type of satellite litigation purely about the assessment of the costs the appellant must pay to the respondent for an earlier unsuccessful appeal. Those further costs are likely to be well beyond the minimum of expense, which r 5 exhorts.
- [37]Given this unusual history, a relatively speedy and inexpensive process is to be preferred for determining the amount the appellant is to pay the respondent for the costs of the appeal. The fixing of the amount of the respondent’s cost would be such a process, if it can be accomplished fairly.
Can a logical, fair, and reasonable estimate of the costs be made?
- [38]At the beginning of the solicitors’ tax invoice, it identified the hourly rate (inclusive of GST) charged for work, relevantly by the solicitor ($550 per hour) and the clerk ($110 per hour). At the end of the tax invoice, it showed total amount charged for all the work.
- [39]The scale item 16(a) for an “other attendance” by a solicitor, involving skill or legal knowledge, is $96.25 per quarter hour before GST. So, the hourly scale rate including GST would be $423.50. This is about 23% less than the $550 hourly rate used for a solicitor in the solicitors’ tax invoice. The total amount for a solicitor’s time in the solicitors tax invoice is $20,295. If the scale hourly rate for an “other attendance” were to be used, the total (including GST) would be $15,627.15.
- [40]The scale item 16(b) for an “other attendance” by an employee is $28.05 per quarter hour before GST. So, the hourly scale rate including GST would be $123.42. This is about 10% more than $110 hourly rate used for a clerk in the solicitors’ tax invoice. The total amount for a clerk’s time in solicitors’ tax invoice is $1,650. If the scale hourly rate for an “other attendance” were to be used, the total (including GST) would be $1,851.30.
- [41]The effect of this simple exercise is that the total amount for the work of the solicitor and the clerk in the solicitors’ tax invoice would be $17,478.45 or about 80% of the total charged to the respondent for that work. This would exceed the amount the respondent seeks (by the adjustment to 65% of the actual charge, which Mr Delaney applied) and would also exceed the 58% indicated by the appellant’s five sample items.
- [42]I reject the appellant’s contention that the costs of his application in the appeal was “beyond the scope” of an order as to the costs of the appeal. No order has yet been made about the costs of the appeal. The appellant’s application was filed in the appeal. By it the appellant sought to reopen the appeal to allow him to make further submissions. The application was dismissed. The costs the respondent incurred in respect of the application are part of its costs of the appeal. No further adjustment to the respondent’s costs is required on account of the inclusion of those costs in the solicitors’ tax invoice.
- [43]The items and charges in counsel’s tax invoice were for work necessary or reasonable in the circumstances for defending the respondent’s rights in the appeal. The Court required a written outline of argument, and the matter was listed for a hearing at which counsel’s attendance to make oral submissions was appropriate.
- [44]The number of hours counsel expended for the particular work was reasonable for a matter in this Court.
- [45]I would reject the appellant’s contention that the professional fees charged by counsel for drafting the outline and for preparing and appearing at the hearing of the appeal should be reduced to the scale amounts for such work as if it had been performed by a solicitor. Those tasks are barrister’s work.[7] Counsel’s fees for barrister’s work are not assessed on this basis.
- [46]The rate at which counsel charged for the professional work was reasonable, having regard to the appeal being in this Court, the outcome at stake and the importance of the case to the parties and the general conduct of the appeal. It was reasonable as a disbursement incurred by the respondent. There is no sound reason for any adjustment to the total amount of counsel’s tax invoice.
- [47]Nonetheless, Mr Delaney reduced counsel’s fees to 65% of the amount in counsel’s tax invoice. One might infer that this adjustment also allowed for any additional reduction that might apply to some of the items for the work of Mr Delaney and the clerk claimed in the solicitors’ tax invoice.
- [48]I would reject the appellant’s narrow challenge to Mr Delaney’s expertise. It misunderstands the range of reasons a solicitor might engage a registered costs assessor to settle a draft costs statement to be served on a litigant with the appellant’s querulous history.
- [49]I am satisfied that the approach to the estimate of costs taken by Mr Delaney was logical, fair, and reasonable. It is possible for the Court to make a broad assessment of the respondent’s standard costs from the two tax invoices and Mr Delaney’s estimate. Such an impressionistic discount of the costs actually incurred would allow for the contingencies that would be relevant in any formal costs assessment. I am confident the reduction to 65% of the actual costs would prevent prejudice to the appellant because it would not overestimate the respondent’s standard costs. The two tax invoices and Mr Delaney’s opinion are a reasonable evidentiary basis.
- [50]I am also content that this significant discount, proffered on behalf of the respondent, would not prejudice the respondent.
- [51]I am satisfied the respondent’s costs may be fixed by reference to the evidence before the Court in a manner that is fair as between the parties. In the circumstances, I am also satisfied that the amount of $22,000 should be fixed for those costs.
Order as to the costs
- [52]For the above reasons, the Court should order that:
- The appellant pay the respondent’s costs of the appeal, including the costs of the application filed 28 April 2025, fixed in the sum of $22,000.
Footnotes
[1][2009] 2 Qd R 303.
[2]At 310 [28]; McMurdo P and Douglas J agreeing.
[3]Under UCPR, chapter 17.
[4]Mr Delaney appeared at the hearing of the application, without counsel.
[5]Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc [2020] QCA 2.
[6]Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc [2025] QCA 63.
[7]Barristers’ Conduct Rules, as amended, r 15.