Cullinan v McCahon (No 2)[2014] QDC 170

DISTRICT COURT OF QUEENSLAND

1. [1]
   On 29 May 2014 judgment was delivered dismissing the appellant’s application pursuant to ss 158B and 232A(2) of the Justices Act 1886 (Justices Act) for a higher amount for costs to be awarded on the basis that such higher amount was just and reasonable having regard to the special difficulty, complexity or importance of the case.^[1]

2. [2]
   The respondent now seeks an order for costs relating to that application. In that regard the respondent has submitted that there is no reason why costs should not follow the event.

3. [3]
   The appellant has submitted that costs should not be ordered. The bases for his opposition to such an order are:

1. (a)
   that the original prosecution was nothing more than a speculative excursion on the part of the respondent;

2. (b)
   that the appellant’s application for higher costs was not unreasonable and was fairly arguable in all the circumstances;

3. (c)
   that the respondent dragged this matter out over an extended period of time, thus causing the appellant to suffer significant expense; and

4. (d)
   that the respondent’s claim for an order in the amount of $1,800.00 is inconsistent with an amount of $800.00 which was “telegraphed” on 29 May 2014.

4. [4]
   Furthermore, the appellant seeks leave pursuant to s 118B of the District Court of Queensland Act 1967 to appeal the decision of 29 May 2014. Curiously, the appellant also seeks leave to appeal any order for costs which might be made in favour of the respondent. In other words, the appellant seeks leave to appeal against a decision that has not yet been made. Whilst no objection to this course has been taken by the respondent such an application is quite clearly inappropriate and if the appellant wishes to seek leave to appeal any decision I make in relation to costs then he should do so at the appropriate time and in the appropriate way. I do not propose to deal further with his pre-emptive application.

5. [5]
   I will address the application for leave first.

Applicable principles

6. [6]
   Section 118B of the District Courts Act 1967 provides:

118B – Leave of District Court required to appeal in relation to costs

(1) An appeal only in relation to costs lies to the Court of Appeal from a judgment or order of the District Court only by leave of the judge who gave the judgment or made the order, or, if that judge is not available, another District Court Judge.

7. [7]
   The approach to be taken in relation to whether leave should be granted against a costs order was addressed by Dowsett J in Grundmann v Georgeson [1996] QCA 189 (with whom McPherson J agreed). His Honour confirmed that leave to appeal is not had for the asking and that:

“Leave should not be given unless the applicant demonstrates that there is a cogent argument against the order. It will not usually be enough to assert dissatisfaction or the judge may not have correctly applied a well-established principle.”

8. [8]
   Chesterman J in Emanuel Management Proprietary Limited (in liquidation) v Fosters Brewing Group Limited [2003] QSC 484 stated the applicable approach this way:

“A trial judge who is asked for leave to appeal should not be defensive about the orders made or overly reluctant to give leave. Nevertheless the cases make it clear that leave should not be given unless there is an arguable case that, applying the principles of House v The King, the discretion will be overturned on appeal. That means there must be an arguable case and the judge committed an error of law, or misapprehended the facts or that the result is inexplicably inconsistent with the facts.”^[2]

9. [9]
   The approach of Chesterman J has been endorsed by the Queensland Court of Appeal on subsequent occasions.^[3]

10. [10]
    Further, in ASIC v Jorgensen [2009] QCA 20, Keane JA (with whom Holmes and Fraser JJA agreed) at [29] noted that the evident intent of the requirement to obtain leave was “to ensure that the primary judge’s balancing of discretionary considerations should not be reconsidered on appeal save in cases where the primary judge has first addressed the question whether there is good reason to allow his or her exercise of the discretion to be reviewed”.

11. [11]
    In Amos v Monsour Pty Ltd [2009] QCA 65, Fraser JA (with whom McMurdo P and Douglas J agreed) at [11]-[12] warned that “too ready an inclination” to grant leave would “run the risk of encouraging unwarranted delay in the final resolution of litigation, the incurring of legal costs in disproportion to the value of the original subject matter of the litigation, and the unjustified generation of other public and private costs”.

12. [12]
    It is worth recalling the comments of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504-505 where their Honours summarised the grounds on which the exercise of a discretionary judgment can be successfully challenged:

“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”

Proposed grounds of appeal

13. [13]
    The appellant has identified the proposed grounds of appeal in his outline of submissions as follows:

1. (a)
   An error of law occurred by the application of the wrong test;

2. (b)
   An error occurred in the application of the facts;

3. (c)
   An injustice has occurred;

4. (d)
   The assessment issue was likely wrongly decided.

14. [14]
    In his Reply to the respondent’s outline of submissions the appellant has attempted to better articulate the potential grounds of appeal. Curiously, he has framed them as questions. Ultimately, it appears to me that the four potential grounds of appeal as listed in paragraph [13] above encapsulates all of the issues that the appellant wishes to argue. I will deal with each in turn.

The wrong test

15. [15]
    The appellant asserts that the effect of the Reasons for Judgment is that “a bar has been raised” as to the meaning of the phrase “just and reasonable having regard to the special difficulty, complexity or importance of the case” so that it would “preclude all but the most exceptional case” from obtaining a higher costs order under ss 158B and 232A of the Justices Act.^[4]

16. [16]
    In that regard, I infer that the appellant is critical of the approach that I adopted as to the meaning of the word “special” at paragraphs [21] and [22] of the reasons.

17. [17]
    He has submitted, with reference to many authorities, that reference to a dictionary definition of a word that appears in a statute can lead to an incorrect interpretation of the provision unless the context in which the word is used is also taken into account. I agree with that submission.

18. [18]
    The difficulty for the appellant however is that that is the approach I adopted in this matter. I note that the appellant does not contend that the word “special” has a meaning different to that identified by me, or that that meaning is not the ordinary meaning of the word. Nor does the appellant identify anything in the relevant statutory provisions which would suggest that the context in which the word “special” is used requires a meaning to be given to it other than its ordinary meaning.

19. [19]
    The appellant submits however, that:

“The word ‘exceptional’ does not fit with ‘just’: it does not fit with ‘reasonable’. There is no such thing as ‘exceptionally just and reasonable’ nor ‘exceptional’ complexity in law or exceptional importance as that imports something other than the application of the law in accordance with the rule of law.”^[5]

20. [20]
    That submission ignores the actual words used in ss 158B and 232A of the Justices Act, namely “just and reasonable having regard to the special difficulty, complexity or importance of the case”. The adjective “special” does not apply to, or restrict, the words “just and reasonable”. They apply to “difficulty, complexity or importance”. Properly construed, the discretion to award a higher amount for costs as provided for in the statutory provisions, is enlivened where: (a) special difficulty, complexity or importance exists; and (b) it is just and reasonable to make a higher award having regard to the identified special difficulty, complexity or importance.

21. [21]
    Furthermore, the submission fails to explain why it is not possible for there to be exceptional complexity, difficulty or importance in a case.

22. [22]
    The appellant has also submitted that the approach adopted by the court is “not consistent with, and leads to demonstrable inconsistency with comparable cases that could not otherwise satisfy that test yet where such awards have been made”.^[6]I note however, that no elaboration of the nature of the asserted inconsistency has been made. The appellant referred the court to a number of authorities, that I infer were said to be relevant to this issue. Examination of those authorities however does not reveal any inconsistency.^[7]In fact, the interpretation of “special difficulty, complexity and importance” by the courts in those cases which dealt with that issue, reflects the approach adopted by me in this matter. The conclusion as to whether to award a higher amount of costs in each of those cases depended on the particular facts of the case, just as the conclusion in this case turned on its particular facts.

23. [23]
    The appellant has also asserted that matters involving complex public statutes (such as the Sustainable Planning Act 2009 and the Building Act 1975) “demand a higher rate for costs”. The only authority purportedly relied upon in support of that submission is Stevenson Group Investments Pty Ltd v Newman & Ors [2012] QCA 351. Examination of that case however reveals that it is not authority for that proposition at all. The simple fact is that the court, when determining whether to award a higher amount of costs, is constrained by the words in the legislation, namely whether a higher award is “just and reasonable having regard to the special difficulty, complexity or importance of the case”. No doubt, some matters which involve such statutes will involve special complexity or difficulty. This was not such a case and the appellant has failed to identify any arguable error under this ground of appeal that would justify leave to appeal being granted.

The erroneous application to the facts

24. [24]
    This proposed ground of appeal appears to consist of no more than repeated assertions by the appellant that a different conclusion should have been reached. I cannot discern the identification of any arguable error of the type outlined in House v The King.

25. [25]
    The appellant has submitted that:

“A proper determination of costs at the higher rate cannot with respect, be properly resolved by looking at the content of the complaint and the particulars to reach a conclusion ‘the charge was reasonably straightforward’ and therefore did not result in a higher rate without looking at what happened from 10 August 2012 to 29 May 2014”.

26. [26]
    Whilst I agree with that submission, that is not, in fact, what occurred. The Reasons for Judgment make it clear that the decision was not based on a consideration of the nature of the charge and its particulars in isolation. All matters raised by the appellant were considered.^[8]The appellant has not submitted that a relevant consideration was overlooked or that an irrelevant consideration was taken into account. Ultimately, after considering all relevant matters, I was not persuaded that this was a matter in which the discretion to award higher costs should have been exercised.

27. [27]
    In fact, this ground appears to be no more than an attempt to reargue factual findings made against the appellant. That approach of course does not provide a proper basis for allowing leave to appeal.

28. [28]
    The respondent has submitted that the findings that were made were open on the evidence and that no proper basis for allowing leave to appeal has been identified.

29. [29]
    Even noting the requirement as identified by Chesterman J in “Emanuel Management” that a trial judge who is asked for leave to appeal should not be defensive about the orders made or overly reluctant to give leave, the appellant has nevertheless failed to identify any House v The King type error under this ground.

30. [30]
    In his Reply, the appellant has also set out the following question as a prospective ground of appeal:

“Has the court erred in law, in not making any determination as to the essential grounds of the claim for higher costs in paragraph 4 above whereby the difficulty, complexity and importance of the case might be properly adjudged as more than ordinarily encountered?”

31. [31]
    This is an issue which seems to me to fall within the parameters of the potential ground of appeal that there has been an “erroneous application to the facts.” Irrespective of whether it does fall within that appeal ground or whether it is a separate ground in its own right I am not persuaded that the issue has any validity for present purposes. Paragraphs [24] to [36] of the Reasons for Judgment dealt with the reasoning and conclusions as to whether this matter involved special complexity, difficulty or importance based upon the array of grounds relied upon by the appellant as justifying the higher award of costs. The appellant has provided no explanation or elaboration as to why those parts of the reasons for judgment do not amount to an adequate consideration of those issues. In fact, the appellant has made no submissions whatsoever relevant to this issue.

32. [32]
    Accordingly, the appellant has failed to identify an appropriate error under this ground such that would justify the granting of leave to appeal.

An injustice has occurred

33. [33]
    The appellant has submitted that he has been “deprived of transcript fee costs commonly allowed to unrepresented litigants, witness fees and travelling expenses on no other basis than that the Brisbane City Council did not want to pay”. Yet, once again, the appellant has failed to identify any error in the assessment of the amount of costs that the respondent has been ordered to pay the appellant. In the absence of such identifiable error, the prospective ground of appeal has no merit.

The assessment issue likely wrongly decided

34. [34]
    The appellant has submitted that in Murray v Radford [2003] QCA 91, Davies, Jerrard JJA and Mackenzie J all considered that assessment was available pursuant to s 226 of the Justices Act and that my decision regarding that issue was therefore demonstrably incorrect.

35. [35]
    Unfortunately for the appellant, that decision is not authority for the proposition he asserts. In that case the court fixed the costs and there was no determination as to whether power existed to order an assessment of costs. Furthermore, the obiter comments made by the court in relation to the awarding of costs do not appear to relate to the power to order an assessment of costs but rather whether the costs fixed under the Justices Regulations 2004 could confine the costs awarded by the court.^[9]Quite obviously it does not, and I might add, neither party to that appeal contended otherwise.

36. [36]
    The appellant appears to be complaining (as best I can interpret the submission) that I have made a determination that the District Court does not have power to determine the quantum of the costs it orders. The submission reads^[10]:

“While it certainly is accepted by the appellant, and the Certificate of Readiness was signed on that basis, that an assessment by a District Court judge is inefficient and inappropriate but that does not, with respect, mean that the power in section 226 cannot be exercised in the determination of quantum.”

37. [37]
    That submission however has no relevance as no such determination was made. The court undoubtedly has that power. But, the power of the court to fix the quantum of costs is different to a power to order that an assessment of costs be undertaken. Accordingly, the appellant has again failed to identify an appropriate error such that would justify the granting of leave to appeal.

Conclusion

38. [38]
    For the reasons given in the preceding paragraphs the appellant’s application of leave to appeal is without merit and is dismissed.

Costs of application for higher award of costs

39. [39]
    Section 232A of the Justices Act falls within Part 9 Division 1 of that Act. It provides that in deciding costs that are just for that Division, the Judge may award costs only:

1. (a)
   for an item allowed for this division under a scale of costs prescribed under a regulation; and

2. (b)
   up to the amount allowed for the item under the scale.

40. [40]
    A scale of costs is prescribed in Part 2 of Schedule 2 to the Justices Regulations 2004. Section 4, Part 1 of Schedule 2 provides that the amount set by the scale can be increased by 20 per cent in the case of appeals to the District Court.

41. [41]
    The respondent has submitted that the most appropriate item appears to be Item 1 which is for “instructions and preparation for the hearing, including attendance on day 1 of the hearing”. It submitted that that description of work is apt to apply to the appellant’s application for costs, and I agree. It was a separate application brought by the appellant which undoubtedly involved the taking of instructions, preparation and attendance at a hearing. Despite the issue in dispute relating only to costs, I am satisfied that the legal professional work required fell within the constraints of s 4, Part 1 of Schedule 2.

42. [42]
    In resisting the application for costs the appellant has submitted that the respondent’s success in resisting the appellant’s application for a higher award of costs is not an “event” of success within a recognised category. No authorities were relied upon in respect of that submission and there was no further elucidation of the submission. In my view it is a submission without merit, particularly given the provisions of Rule 681 of the Uniform Civil Procedure Rules 1999:

681 General rule about costs

1. (1)
   Costs of a proceeding, including an application in a proceeding, are in the discretion of the court but follow the event, unless the court orders otherwise.

1. (2)
   Subrule (1) applies unless these rules provide otherwise.

43. [43]
    Insofar as the appellant’s other submissions are concerned, I am not satisfied that the original prosecution “was nothing more than a speculative excursion on the part of the respondent”. It does not follow that the prosecution was speculative simply because the respondent conceded the appeal.

44. [44]
    Furthermore, the appellant submits that his application “for higher costs was not unreasonable and was fairly arguable in all of the circumstances”. That however, whilst of some relevance, is not solely determinative on the issue of costs. Even assuming the accuracy of the submission, it must be considered in light of the fact that the appellant’s case on the issue was unsuccessful.

45. [45]
    Also, the appellant’s submission that the “respondent dragged this matter out” is not only without evidentiary foundation in this court but it also does not negate or mitigate the fact that the appellant was unsuccessful in his application on this discrete point.

46. [46]
    Furthermore, the submission that an amount of $800.00 was “telegraphed” by the respondent to the appellant on 29 May 2014 is so obscure that it is impossible to interpret its meaning. There is no evidence before this court regarding the “telegraphing” of any such amount.

47. [47]
    In all of the circumstances I am not persuaded that this is a matter where I should exercise the discretion to depart from the usual rule that costs should follow the event.

48. [48]
    The amount specified for item 1 is $1,500.00. Whilst the Regulation provides the court with the power to uplift that amount by 20 per cent in the case of appeals to the District Court, in my view given that this matter only involved an argument regarding costs, it is not appropriate to uplift the base amount.

49. [49]
    The respondent has also argued that a further order for costs should be made in his favour in relation to the appellant’s application seeking leave to appeal the orders made on 29 May 2014. It is submitted that the same rationale applies in respect to that issue and that a further order in the amount of $1,800.00 would be appropriate. Once again, whilst I accept that the appellant has correctly identified Part 2 of Schedule 2 of the Justices Regulations 2004 as having application I am once again not satisfied that it is appropriate to order a 20 per cent uplift as provided by s 4, Part 1 of Schedule 2.

Orders

1. The appellant is ordered to pay the respondent’s costs of and incidental to the appellant’s application for a higher award of costs pursuant to ss 158B and 232A of the Justices Act 1886 in the amount of $1,500.00.

2. The appellant’s application for leave to appeal orders numbered 3, 4 and 5 of the judgment delivered on 29 May 2014 in the matter of Cullinan v McCahon [2014] QDC 120 is dismissed.

3. The appellant is ordered to pay the respondent’s costs of and incidental to the appellant’s application for leave to appeal orders numbered 3, 4 and 5 of the judgment delivered on 29 May 2014 in the matter of Cullinan v McCahon [2014] QDC 120 in the amount of $1,500.00.