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Hemelaar v Walsh (No 2) QDC 195
DISTRICT COURT OF QUEENSLAND
Hemelaar & Red v Walsh, Gough & State of Queensland (No 2)  QDC 195
RYAN NICHOLAS HEMELAAR
KEVIN MICHAEL RED
PETER JAMES WALSH
RENEE ANN GOUGH
STATE OF QUEENSLAND
5012/16 (appeal) and 149/17 (cross-appeal)
21 June 2017, ex tempore
21 June 2017
Bowskill QC DCJ
APPEAL – COSTS – whether appropriate to apportion the costs of the appeal, having regard to the mixed levels of success on the various issues dealt with in the appeal
Magistrates Court Act 1921, s 47
Uniform Civil Procedure Rules 1999, rr 684, 766(6) and 785
Interchase Corporation Ltd v Grosvenor Hill (Queensland) Pty Ltd (No 3)  1 Qd R 26
Murdoch v Lake  QCA 269
S Fisher directly briefed by the Appellants
P Rashleigh for the Respondents
Crown Solicitor for the Respondents
HER HONOUR: On the 9th of June 2017, I delivered my reasons in relation to the appeal by Mr Red and Mr Hemelaar, and invited submissions as to costs if the parties could not agree. In the submissions that were subsequently provided, it is apparent there is extensive disagreement between the parties as to what the appropriate order as to the costs of the appeal should be, and also in relation to the costs of the trial in the Magistrates Court.
In relation to the latter, that is the costs of the trial, I note that the orders made on the occasion of the Magistrate handing down his decision on 5 December 2016 were the subject of discussion and a draft order handed to the Magistrate, save for order number 4 regarding the second defendant’s costs. There are some confusing aspects of that order, but I have clarified those with the parties today, and I understand what was intended by them.
In relation to the outcome of this matter following the appeal, ultimately, there was an increased amount of compensatory damages awarded to Mr Hemelaar and Mr Red, which, with interest, takes the amounts recovered into column F of schedule 3 of the UCPR. There has been a fixing up of the anomaly in the previous decision regarding damages not being awarded against the first defendant and the failure to award interest, and the fixing up of an error regarding awarding of an amount to Mr Hemelaar for 10 September. But, largely, otherwise, the matter was left as it was.
In terms of the costs of the trial, both parties have asked that I do deal with those, although I have noted that it was not the subject of the notice of appeal. But having regard to this Court’s power under section 47 of the Magistrates Court Act 1921, to make such order with respect to costs of the appeal as it thinks proper, and also having regard to rule 766(6) of the UCPR, which applies to this Court by virtue of rule 785, I am satisfied that even though that was not expressly subject of the notice of appeal, I can exercise my powers in relation to that.
There is a complicating feature of the costs of the trial in the sense that the State did make an offer to settle to Mr Red only, and, in that regard, it was an offer to settle only part of the proceeding, being that part of it that related to his arrest on 10 September 2013. The offers were quite significant. The first one was an amount of $15,000, which was made on 11 May 2016, and the second offer was an amount of $18,500 made on 3 June 2016. So, particularly in respect of that incident on 10 September, but even in respect of the overall proceeding, Mr Red did not do better than that. But there are a number of complicating features, and they include that the offer was only made in relation to, as I have said, part of the proceeding, not all of it; the proceeding would have continued anyway in respect of the 17 September incident; and there were only, I understand, walk away offers made to Mr Hemelaar in respect of the 17 September incident.
There is agreement between the parties as to the amount of the costs that would be assessed as recoverable at the trial under scale F, which is the appropriate scale, bearing in mind the increase in compensatory damages following the appeal, and that comes to an amount of $4,761.
At the trial, by order 3 made by the Magistrate on 5 December 2016, there was an order for Mr Red to pay the first and third defendants costs of the proceeding from 12 May, the intention being that that just be relatable to the 10 September incident, because that is the part of the proceeding that the offer was made in relation to. In relation to that, Mr Rashleigh, for the State, has provided an estimate by reference to scale F of the State’s costs of the trial, which are significantly higher because of the inclusion of a solicitor’s fees as well. They are estimated at about $15,751, and that is supported by an affidavit of Samantha Amos.
In endeavouring to find a pragmatic solution to this matter, bearing in mind that at the end of the day, they are not significant sums of money that are being awarded by way of compensatory damages, and the process and the cost involved in conducting an assessment of what might be, say, a third of the State’s costs of the trial to be set off against the costs to be awarded in favour of the plaintiffs for the other part of the proceeding at trial, I have flagged with the parties that perhaps a pragmatic outcome is simply to set off the costs payable to the plaintiffs against what might be roughly a third of the State’s costs of the trial. There is no precision in that respect, but it is, in my view, an appropriate way to deal with this matter.
I accept Mr Fisher on behalf of the plaintiffs / appellants could not say to me today that he had instructions to agree to that. Mr Rashleigh, for the defendants / respondents did have instructions to agree to that. But, in circumstances where I regard that as a pragmatic and fair outcome in all the circumstances, in order to avoid the parties incurring further costs and delay associated with an assessment, I propose that the orders in relation to the costs of the trial be (1) that orders 1 to 4 made by the Magistrate on 5 December 2016 be set aside and (2) in lieu of those, there be an order that each party bear their own costs of the trial.
In terms of the costs of the appeal, each side, respectively, seeks an order that the other side pay their costs. So the appellants say costs should follow the event because the appeal was allowed and they should recover their costs. The respondents point to the limited success of the appellants, and say they should have their costs.
The appellants relied on 26 grounds of appeal. Of those, the respondents conceded grounds 23, 24 and 25 (those related to the issue about the damages being awarded against the first defendant, as well as the third) and also ground 26 (that interest should have been awarded). The appellants had a measure of success on grounds 7, 8 and 9 (which related to damages for battery) and 13 and 14 (which related to damages for false imprisonment), in that the amount of compensatory damages was increased.
The appellants were unsuccessful on ground 1, which I described in my reasons as an illogical ground in any event because it sought to challenge a finding not made; and on grounds 2 to 5 (the tort of assault), ground 6 (the battery concerning the second defendant/respondent, Officer Gough), grounds 10, 11 and 12 (malicious arrest), grounds 15 and 16 (injured feelings) and grounds 17, 18 and 19 (aggravated damages). The appellants abandoned grounds 20, 21 and 22 (regarding exemplary damages). There was also the respondents’ cross-appeal, which merely sought to correct the error that had been made of awarding an amount to Mr Hemelaar for his arrest on 10 September, for which there had been no claim, and that was conceded by the appellants.
Looked at in isolation, in relation to the conceded grounds, so that is 23, 24, 25 and 26, I cannot see any reason why the costs should not be neutral, that is, each side bear their own costs. It is not a case where anything done by the respondents at trial encouraged the outcome appealed against. In fact, it was the opposite. There was a factual error made by the Magistrate about Mr Hemelaar’s claim. There is what I found is an erroneous decision, in terms of not awarding damages against the first defendant, but I query the practicalities of appealing that in isolation from the other issues, because of the practicality that the State would pay the damages in any event. And there was the issue of interest. I do not think the appeal costs fund applies in this matter, because the appeal did not succeed on a question of law. Perhaps the issue of not awarding damages against the first defendant may be described as an error of law, but if that was the extent of it, I would decline to exercise my discretion under section 15(2) of the Appeal Cost Fund Act in any event.
More broadly, this is a case in which, in my view, it is appropriate that there be an apportionment of costs, having regard to the issues the subject of the appeal and the outcome in respect of them. As to the relevant principles, I refer, without setting them out in detail, to Murdoch v Lake  QCA 269, in particular at paragraphs 19 to 24. The Court does have power to make an order for costs in relation to particular questions in or particular parts of a proceeding where that is considered appropriate.
In my view, there should be an apportionment of the costs, because, although the appellants have succeeded in the sense that the appeal was allowed and the amount of compensatory damages awarded to them was increased, they were unsuccessful on multiple other issues that were litigated in the appeal, and it would be unfair, in my view, for the respondents to be visited with the burden of those costs in the circumstances. As noted in the decision of Interchase Corporation Ltd v Grosvenor Hill (Queensland) Pty Ltd (No 3)  1 Qd R 26 at page 61, to regard “the event” in this case simply as the appeal being allowed would cause such injustice as to call for the exercise of the power conferred to make another order than costs following the event, but there is also the express power in rule 684 in any event.
The question is how to apportion the costs. I think a fair apportionment, having regard to the outcome of the various issues, would have been that, effectively, the respondents pay the appellants’ costs of grounds 7, 8, 9, 13 and 14; but that the appellants pay the respondents’ costs of grounds 1 to 6, 10 to 12, 15 to 22; and, thirdly, that the parties bear their own costs of grounds 23, 24, 25, 26 and the cross-appeal.
I have raised with the legal representatives today whether there is also a pragmatic outcome to be achieved here in order to avoid the costs of and time and complication involved in an assessment of those respective costs, because that would not be a simple task, and it certainly would be an expensive task to be undertaken. Mr Rashleigh for the respondents indicated that he did have instructions to agree if a similar order was made, that is that each party bear their own costs. So the pragmatic effect of that is proceeding on the basis that the costs on each basis would even themselves out. Mr Fisher is unable to say that he has those instructions today.
In circumstances where, I think, in all reality, the outcome is greatly to the benefit of the appellants if I make an order that each party bear their own costs of the appeal, I propose to proceed today to do that, rather than giving time to Mr Fisher to go away and obtain those instructions. In all likelihood, just as they were with the trial, because of the involvement of a solicitor as well as counsel, the assessed costs of the State in relation to this appeal – or those particular grounds of the appeal that I have identified – will, I have almost no doubt, be in excess, possibly far in excess of the assessed costs which may be recoverable by the appellants in respect of those limited grounds that I have identified. In those circumstances, where that is to the benefit of the appellants, and given the agreement indicated by Mr Rashleigh on behalf of the respondents, that is the order that I propose to make.
So confirming then, in respect of the appeal, for the reasons that I have outlined, the order will be that each party bear their own costs.
- Published Case Name:
Hemelaar & Red v Walsh, Gough & State of Queensland (No 2)
- Shortened Case Name:
Hemelaar v Walsh (No 2)
 QDC 195
21 Jun 2017