Queensland Building and Construction Commission v Sullivan (No 2)
[2016] QDC 96
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- Unreported Judgment
- Queensland Building and Construction Commission v Sullivan (No 2)[2016] QDC 96
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Queensland Building and Construction Commission v Sullivan (No 2)[2016] QDC 96
Queensland Building and Construction Commission v Sullivan (No 2)[2016] QDC 96
DISTRICT COURT OF QUEENSLAND
CITATION: | Queensland Building and Construction Commission v Sullivan & Ors (No 2) [2016] QDC 96 |
PARTIES: | QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (plaintiff) v NATASHA SHAYE SULLIVAN (nee FACER) (first defendant) and BIANCA HERPS (third defendant) and JEOFF MITCHEL & ASSOCIATES PTY LTD (ACN 058 731 016) (fourth defendant) and JEOFFREY ROBERT MITCHEL (fifth defendant) and EMANUEL HIRAKIS (sixth defendant) and JOHN ROBERT FACER (seventh defendant) and NICOLAS GUY HERPS (eighth defendant) and ANNE CHRISTINA MITCHEL (ninth defendant) and MACOMO PTY LTD (ACN 05 424 595) (tenth defendant) and REGENT GROUP PROJECTS PTY LTD (ACN 072 521 530) (eleventh defendant) and JUDITH LOUISE MCLEAN (twelfth defendant) |
FILE NO/S: | 3082/2012 |
DIVISION: | Civil |
PROCEEDING: | Application in a proceeding |
ORIGINATING COURT: | Brisbane |
DELIVERED ON: | 27 April 2016 |
DELIVERED AT: | Brisbane |
HEARING DATE: | On the Papers |
JUDGE: | Dorney QC DCJ |
ORDERS: | It is ordered that:
|
CATCHWORDS: | Costs of application dismissed, including reserved costs – whether part of proceeding be dismissed; and, if so, what orders as costs should be made |
CASES CITED | Australand Corporation (Qld) Pty Ltd v Johnson & Ors [2007] QSC 128 Hansell v Collision Finance and Investments Pty Ltd [2006] QDC 054 Pioneer Sugar Mills Pty Ltd v United Group Infrastructure Pty Ltd [2006] 1 Qd R 535 The IMB Group Pty Ltd v Australian Competition and Consumer Commission [2005] QSC 139 The IMB Group Pty Ltd (in liq) & Ors v Australian Competition and Consumer Commission [2006] QSC 012 |
COUNSEL: | B E Codd for the Plaintiff B O'Donnell and N H Ferrett for the Third and Eighth Defendants |
SOLICITORS: | Rostron Carlyle for the Plaintiff Nicholsons Solicitors for the Third and Eighth Defendants Barry Nilsson for the Fourth, Fifth and Ninth Defendants |
Introduction
- [1]When I handed down my ex tempore decision concerning the plaintiff’s application filed on 17 March 2016, besides dismissing that application, I gave leave to both sets of parties (namely, the plaintiff and the third and eighth defendants, respectively) to filed and serve submissions on all relevant issues of costs by 4pm on 15 April 2016. This has now been done.
Plaintiff/applicant’s submissions
- [2]The plaintiff concedes that the third and eighth defendants are entitled to their costs of the plaintiff’s application apart from the costs of the adjourned hearing on 30 March 2016 (for which I reserved costs). As I remarked in my reasons, it was adjourned when it was heard on that day ostensibly because of the considerable affidavit material that was proffered by the respondents at that time: at p 2.
- [3]The remaining issues identified by the plaintiff are:
- costs incurred as a result of the adjournment “caused by the late delivery of affidavit material by the plaintiff at the first return”;
- the disposition of the proceeding;
- the third and eighth defendants’ costs of the proceeding as incurred other than in resisting the plaintiff’s application; and
- whether the third and eighth defendants’ costs of the application be limited to one counsel.
- [4]As to the costs of the adjournment, the plaintiff contends that on the morning of 30 March 2016 three affidavits were served upon the plaintiff by the third and eighth defendants with notice being given that a fourth affidavit was to come. As indicated in these particular submissions, I permitted the adjournment to allow the plaintiff to have a reasonable opportunity to assess, and respond, to the affidavits so lately served. Reference has been made in the submissions to Pioneer Sugar Mills Pty Ltd v United Group Infrastructure Pty Ltd [2006] 1 Qd R 535 - but I cannot infer why the adjourned hearing led to the order of those costs being excepted from the costs of the proceeding itself, particularly where no reasons were advanced by Byrne J.
- [5]As to the costs of the proceeding, the plaintiff submits that the third and eighth defendants should not be awarded costs based upon work undertaken after 17 March 2016. This contention is based upon the third and eighth defendants raising the issue of the claim being stale on 16 March 2016 and the application in this part of the proceeding being filed on 17 March 2016, when the trial was due to commence on 26 April 2016. It was argued that it was plain that, if the claim against the third and eighth defendants was renewed, an adjournment of the trial would have been necessary to allow those defendants time to defend and that a large proportion of the documents filed in the proceeding referred to in the evidence of the third and eighth defendants on the relevant application was not relevant to them. Expressed another way, the plaintiff contended that the third and eighth defendants’ costs, insofar as they were incurred after 16 March 2016 other than for the purpose of the application, were not reasonably incurred because the third and eighth defendants “plainly knew they did not need to answer the claim until a renewal had been obtained”.
- [6]Lastly, as to two counsel, the plaintiff relied upon submissions by the third and eighth defendants that, since the “relatively low value” of the claim was a factor against the Court exercising the discretion to renew, the value and nature of the application did not warrant two counsel, or even senior counsel.
Third and eighth defendants’/ respondents’ submissions
- [7]The first issue raised by the third and eighth defendants was the need for an order “dismissing the proceeding” as against them. It was contended to be the “natural consequence” of a dismissal of the application to renew. Reference was made to Hansell v Collision Finance and Investments Pty Ltd [2006] QDC 054 (at [45]-[46]). That was a decision of McGill SC DCJ in which the application there by the relevant defendant sought that the claim be struck out, amongst other orders sought. It was in that context that it was stated that, since the claim ought not be renewed, it followed that the irregularity ought not now be cured and that, in those circumstances, the appropriate course was to “dismiss the action” against the relevant defendant, noting that that “follows from the relief granted in the IMB cases”: at [45]. Somewhat intriguingly, in the first of the IMB cases, The IMB Group Pty Ltd v Australian Competition and Consumer Commission [2005] QSC 139, Holmes J (as she then was) did make a “dismissal” order. Nevertheless, as is abundantly clear from the judgment, that was what the defendants, by alternative means, had sought (namely, “the summary termination of the plaintiffs’ action against them”): at [1]. As for the second IMB case, The IMB Group Pty Ltd (in liq) & Ors v Australian Competition and Consumer Commission [2006] QSC 012, Helman J at first instance simply stated that the defendant would have the principal relief it sought (namely, primarily, an order that the decisions of the registrar “be set aside”): at [1]. On appeal, in The IMB Group Pty Ltd (in liq) v Australian Competition and Consumer Commission [2007] 1 Qd R 148, the relevant order was simply that the appeal itself was “dismissed”.
- [8]The second aspect of the third and eighth defendants’ submission, dealing with the costs thrown away by reason of that adjournment on 30 March 2016, was to the effect that, although they delivered affidavits on the morning of that hearing, that was not the only relevant factor. In particular, those defendants relied upon the lateness of the relevant affidavits being explicable in the circumstance of the “important” events that occurred on and from 26 February 2016, including the analysis by their solicitors of nearly 30 arch lever folders of material and the consequential “considerable work” needed to be undertaken for preparation, in circumstances where there were only 5 business days between 18 and 30 March 2016. These submissions also relied upon the fact that the plaintiff “asked for the adjournment” - although it was conceded that the basis for doing so was that it needed time to consider and respond to the third and eighth defendants’ affidavits. The submissions then contended that the affidavits subsequently relied upon by the plaintiff were “overwhelmingly” directed to an attempt to discharge its onus to prove that it had taken reasonable steps and that there was some other good reason. This was asserted as not properly to be regarded as responsive. Furthermore, it was contended that the necessity for the urgent hearing was caused by the plaintiff’s actions in having the proceeding set down for trial in November 2015 and then seeking the listing of the hearing of this application somewhat urgently when the trial itself was imminent.
- [9]The submissions by the third and eighth defendants concede that, when an adjournment is made necessary by the late service of material, the party serving that material will “usually” be ordered to pay the costs as thrown away – but noted that such discretion was unfettered and that it must be exercised judicially and not slavishly. Concerning that, these submissions contended that the “common thread” in the application was that the plaintiff has delayed, and deliberately done so, being a factor in support of the plaintiff paying costs of the proceeding, including reserved costs.
“Dismissal” order
- [10]As is noted in my analysis of the IMB cases, the order for dismissal was only made in the one case in which it was sought. Nevertheless, it is clear from the submissions made by the plaintiff that the plaintiff has anticipated that the third and eighth defendants would seek their costs of the proceeding. It cannot, therefore, be a surprise to the plaintiff that the third and eighth defendants would want, even though they never formally applied for it, an order terminating the proceeding against them.
- [11]I accept the general proposition enunciated in Hansell that, when, as here, a decision is made that the claim ought not be renewed, it follows both that the irregularity ought not now be cured and that the appropriate course is to dismiss the proceeding as against the relevant defendants.
- [12]But, in order to allay any concern about a denial of procedural fairness, I intend to raise this matter when handing down the general decision on costs, immediately after publishing my reasons; and should the plaintiff require further time to address this issue, I intend to allow that course to be taken. Otherwise, I will order that the plaintiff’s proceeding against the third and eighth defendants be dismissed.
Costs for the adjournment
- [13]The third and eighth defendants have correctly conceded that the “usual” order when late service of material has occurred is that the party serving that material be ordered to pay the costs thrown away. Unfortunately, neither side sought to have the matter adjourned by agreement despite the argument of substance that the third and eighth defendants had concerning the work that had to be undertaken and therefore the significant delay that would ensue before relevant affidavits could be prepared and relevant preparation could be made for the application itself. But it would be speculative to guess what response the plaintiff might have made. I can only address what happened.
- [14]Taking those matters into account, the approach that I accept as appropriate in this case is that the third and eighth defendants should pay the plaintiff’s costs with respect to the adjournment but limited to the costs of the actual appearances on that day (that is, 30 March 2016). I conclude that that is the appropriate way to deal with the multitude of factors that came into play – and which have been outlined in my survey of both sets of submissions – for this particular adjournment.
- [15]It should be remarked that the third and eighth defendants have, indeed, offered an explanation as to why the affidavits served on the morning of the relevant day could not have been delivered earlier – but it would have, and did, require the plaintiff to then consider the full extent of the material, even though its eventual response ranged more widely; and that would have occurred anyway (even though the adjourned time was used by the plaintiff to generate more material than that required simply for a response). Both parties had consented to the hearing date being 30 March 2016.
Third and eighth defendants’ costs of the proceeding
- [16]Should it be ordered that the proceeding brought by the plaintiff against the third and eighth defendants be dismissed, then those defendants should have their costs of the proceeding, apart from those concerned with this application. It is contrary to the proper application of legal practitioners’ care and skill not to consider all documents filed in the proceeding which were in fact referred to in the evidence led by the third and eighth defendants. It is clear from the submissions made by both parties that it was important to understand the complete basis of the plaintiff’s claim in order to understand that part which was relevant to the causes of action alleged against the third and eighth defendants. I reject the argument that the third and eighth defendants need not have considered all aspects of the claim until a renewal had been obtained as, in my view, it was impossible in addressing the contested application as to renewal not to consider all relevant and appropriate aspects of the claim itself.
- [17]Accordingly, I will make an order that I have indicated, if it is not in contest at the handing down of this decision that the proceeding against the third and eighth defendants be dismissed.
Two counsel
- [18]As is obvious from the judgment that I gave on 8 April 2016, although ex tempore, the issues were of considerable complexity. In properly understanding that complexity I was assisted by the oral, as well as the written, submissions of both sets of counsel, it being particularly important that the relevant questions and issues be carefully and responsibly addressed. In particular, senior counsel for the third and eighth defendants narrowed those issues and questions in a way that proved of considerable help in the eventual determination. I am, therefore, persuaded that it was reasonable, necessary and appropriate that the third and eighth defendants retain both senior and junior counsel. This issue, although involving three counsel, was considered by McMurdo J (as he then was) in Australand Corporation (Qld) Pty Ltd v Johnson & Ors [2007] QSC 128: at [21]-[22]. I intend to make an order in a somewhat similar form to one he made in that case.
- [19]Although the respondents contended that the relatively low value of the claim was a factor against the Court exercising the discretion to renew, it does not have the consequence that the issues and questions that were considered by me were themselves of relatively low value.
Orders
- [20]The orders I intend to make are that:
- The third and eighth defendants pay the plaintiff’s costs of the application filed 17 March 2016 limited to the attendance of counsel and instructing solicitor at the hearing on 30 March 2016 which was adjourned.
- The plaintiff otherwise pay the third and eighth defendants’ costs of the application filed 17 March 2016 (that is, excluding attendance at the hearing on 30 March 2016 which was adjourned).
- Should there be no contest that the plaintiff’s proceeding against the third and eighth defendants be dismissed:
- (i)That proceeding be dismissed.
- (ii)The plaintiff pay the third and eighth defendants’ costs of the proceeding (apart from the costs ordered above).
- The assessment of the third and eighth defendants’ costs be made on the basis that, except insofar as they are of an unreasonable amount, the following items should be regarded as costs necessary and proper:
- (i)The fees of Mr O'Donnell QC;
- (ii)The fees of Mr Ferrett.