Queensland Food Corporation Pty Ltd v Dermark Pty Ltd (No 2)
[2023] QDC 104
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- Unreported Judgment
- Queensland Food Corporation Pty Ltd v Dermark Pty Ltd (No 2)[2023] QDC 104
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Queensland Food Corporation Pty Ltd v Dermark Pty Ltd (No 2)[2023] QDC 104
Queensland Food Corporation Pty Ltd v Dermark Pty Ltd (No 2)[2023] QDC 104
DISTRICT COURT OF QUEENSLAND
CITATION: | Queensland Food Corporation Pty Ltd & Anor v Dermark Pty Ltd (No 2) [2023] QDC 104 |
PARTIES: | QUEENSLAND FOOD CORPORATION PTY LTD ACN 604479629 trading as QLD Food Corporation (first appellant) and COLLINS INTERNATIONAL (AUSTRALIA) PTY LTD ACN 094416207 trading as Collins International (second appellant) v DERMARK PTY LTD trading as Turnbury Orchard (respondent) |
FILE NO/S: | BD No 3089 of 2021 |
DIVISION: | Appellate |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court at Brisbane |
DELIVERED ON: | 13 June 2023 |
DELIVERED AT: | Brisbane |
HEARING DATE: | On the papers |
JUDGE: | Sheridan DCJ |
ORDERS: |
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CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INDEMNITY COSTS – where appellants appealed against judgment and decisions of Magistrate – where judgment entered in favour of appellants – where final orders were to be agreed by the parties or, in default of agreement, following the provision of written submissions – where the issue in dispute between the parties concerned the appropriate orders as to costs – whether appellants are entitled to costs on the indemnity or standard basis |
LEGISLATION: | Magistrates Court Act 1921 (Qld), s 47 Uniform Civil Procedure Rules 1999 (Qld), r 681, r 702, r 703 |
CASES: | Colgate Palmolive Company & Anor v Cussons Pty Ltd (1993) 118 ALR 248 Di Carlo v Dubois [2002] QCA 225 Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 Tyler v Custom Corp Limited [2000] QCA 178 |
COUNSEL: | A Fronis for the appellants M Plunkett for the respondent |
SOLICITORS: | GLR Law for the appellants Thynne + Macartney Lawyers for the respondent |
Introduction
- [1]The substantive judgment and reasons were delivered on 10 May 2023. Orders were made for the parties to submit draft orders reflecting the reasons. The parties were directed to include in the draft orders as to costs. If the parties were unable to fully agree on the terms of the orders, they were to each deliver separate draft orders together with written submissions in support of the orders proposed.
- [2]In their draft orders, both the appellants and respondent agreed that the orders made by the Magistrate on 30 November 2021 should be set aside and that the matter should be remitted to the Magistrates Court to be determined according to law and determined by a Magistrate other than Magistrate Coates.
- [3]Both agreed to the making of orders for the payment of the appellants’ costs by the respondent of the appeal and of the hearing in the Magistrates Court on 26 and 27 October 2021. The appellants sought the payment of their costs on an indemnity basis whereas the respondent submitted the orders for the payment of costs should be on a standard basis.
- [4]Subsequent to the provision of the draft orders, the appellants sought the making of additional orders giving leave to the appellants to appeal the decision of the Magistrate to strike out the counterclaim and set aside the order of the Magistrate striking out the counterclaim.
Approach to costs
- [5]By s 47(f) of the Magistrates Court Act 1921 (Qld), the District Court may make “such order as to the costs of the appeal…as it thinks proper.” Any order as to costs must be decided in accordance with ch 17A of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR). Rule 681 relevantly provides that the “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.” The costs are to be assessed unless otherwise ordered and the costs assessor must assess costs on the standard basis, unless the rules or an order of the court provides otherwise.[1] Pursuant to r 703, the court may order costs to be assessed on the indemnity basis.
- [6]It is accepted that to justify the making of an order for costs to be assessed on an indemnity basis requires there to be “some special or unusual feature”.[2]
Submissions
- [7]In his submissions, counsel for the appellants focused on, what was described as the real reason for the appeal, Ms Liang not being allowed to give evidence and the counterclaim being struck out. Counsel for the appellants referred to the role played by counsel for the respondent in the making of those decisions by the Magistrate. In particular, it was submitted that counsel for the respondent did not correct the record to make it clear that a statement from Ms Liang had been received. It was submitted counsel readily agreed with the Magistrate’s statement that there was a disadvantage to the respondent because of the lack of a filed statement and that led counsel to make the application that Ms Liang not be allowed to give viva voce evidence.
- [8]It was further submitted that counsel for the respondent made the application to strike out the counterclaim for failure to prosecute without the giving of notice and without detailing all relevant factors to the Magistrate. In referring the Magistrate to the relevant case authority, Tyler v Custom Corp Limited,[3] counsel made no submissions in reliance on the factors referred to in the case and the Magistrate made her decision without any regard to the case.
- [9]It was submitted that the bringing of these applications led the Magistrate into error and unreasonably put the appellants to costs that ought not to have been incurred, being the expense of a trial that was successfully appealed.
- [10]Further, it was submitted the appellants were almost wholly successful on the appeal, bar ground one with respect to the recusal application.
- [11]It was submitted that not a significant amount of hearing time on the appeal was spent on that point and that the respondent insisted on challenging every ground of appeal when, it was submitted, the appeal ought to have been consented to. It was submitted the respondent lacked even an arguable case.
- [12]It was submitted that the respondent had no answer to the argument that there was no order to file an affidavit, that it had in fact received a statement from Ms Liang and that the rules require oral evidence to be given at trial unless an order is made (which it was not).
Considerations
- [13]I accept it was most unfortunate the way the matter proceeded in the Magistrates Court. I accept that counsel for the respondent took advantage of the incorrect views, both as to the facts and the law, expressed by the Magistrate.
- [14]Whilst at one stage counsel corrected the record with regard to the respondent having received a statement from the appellants, I accept that counsel then took advantage of the Magistrate’s wrongly held view as to the giving of viva voce evidence and the confusion as to the number and date of statements or affidavits signed by the director of the appellants and did not further attempt to correct the incorrect statements being made by the Magistrate on that issue.
- [15]Further, as a result of the views expressed by the Magistrate, counsel for the respondent brought an application to strike out the counterclaim, without giving proper notice and in the absence of proper supporting material.
- [16]On the other hand, no allegations were made which were known to be false, there is no suggestion that the proceedings were commenced with some ulterior motive or in wilful disregard of known facts or clearly established law or that allegations which were made ought never to have been made nor was there an undue prolongation of the case by groundless intentions or other misconduct which would bring the proceedings or the hearing into the category where indemnity costs were warranted.
- [17]Ultimately, it was the Magistrate that made the orders without a proper basis for doing so and it was the Magistrate’s errors.
- [18]I do not consider that the conduct of counsel provides a sufficient basis for a departure from the ordinary rule as to costs.
- [19]The Magistrate’s error meant that the appellants were put to the expense of a trial which is to be remitted to be reheard and the expense of an appeal. It is appropriate that the orders as to costs include the costs of the two day hearing and the costs of the appeal.
Orders
- [20]Accordingly, the following orders will be made:
- The appeal is allowed.
- Leave is granted to appeal against the decision of the Magistrate made on 26 October 2021 dismissing the counterclaim.
- The order of the Magistrate dismissing the counterclaim is set aside.
- The judgment of the Magistrates Court dated 30 November 2021 is set aside.
- The matter is remitted to the Magistrates Court at Brisbane to proceed according to law and to be determined by a Magistrate other than Magistrate Coates.
- The respondent pay the costs of the first and second appellants of the appeal to be assessed on the standard basis, if not agreed.
- The respondent pay the costs of the first and second appellants of the hearing in the Magistrates Court on 26 and 27 October 2021 to be assessed on the standard basis, if not agreed.