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  4. Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc - [2023] QSC 214

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Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc[2023] QSC 214

Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc[2023] QSC 214

SUPREME COURT OF QUEENSLAND

CITATION:

Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc [2023] QSC 214

PARTIES:

JAMES BOYD THOMPSON

(appellant)

v

CAVALIER KING CHARLES SPANIEL RESCUE (QLD) INC

(respondent)

FILE NO/S:

BS 12173/18

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

27 September 2023

DELIVERED AT:

Brisbane

HEARING DATE:

24 March 2023

Additional Submissions Received:

13 June 2023.

5 July 2023.

12 July 2023.

3 August 2023.

7 September 2023.

JUDGE:

Callaghan J

ORDER:

Orders as contained in Annexure A.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – APPEALS AS TO COSTS – OTHER MATTERS – where the appellant seeks that the costs assessor’s certificate be set aside – whether the assessment undertaken by the costs assessor was occasioned by bias – whether there were errors in the costs assessor’s exercise of discretion – whether the reasons provided by the costs assessor were insufficient – whether the costs assessor’s certificate ought to be set aside

PROCEDURE – STATE AND TERRITORY COURTS: JURISIDCTION, POWERS AND GENERALLY – INHERENT AND GENERAL STATUTORY POWERS – TO PREVENT ABUSE OF PROCESS – DELAY – where the respondent sought via cross-application to have the appellant’s application dismissed – where the respondent contends that it was prejudiced by the appellant’s delay in progressing the application – where the appellant’s application has demonstrable merit – whether the application ought to be dismissed

COUNSEL:

The applicant appeared in person

C Templeton for the respondent

SOLICITORS:

ACLG Lawyers for the respondent

  1. [1]
    This application traces to the decision of the Court of Appeal in Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc [2020] QCA 2. Philippides JA (with Fraser JA and Ryan J agreeing) ordered that the applicant’s appeal be dismissed with costs (“the costs order”). I shall continue to refer to Mr Thompson as the appellant and Cavalier King Charles Spaniel Rescue (Qld) Inc as the respondent.
  2. [2]
    Pursuant to r 742 of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) the appellant seeks that the Costs Assessor’s Certificate (“the Certificate”) of Mr Douglas Anthony Kerr filed on 4 November 2020 be set aside.[1] In the alternative, the appellant seeks that the court make any other order or give any other direction it considers appropriate in accordance with r 742(6)(e).
  3. [3]
    Concurrently, the respondent seeks – via cross-application and pursuant to r 5(4), or alternatively this court’s inherent jurisdiction – that the appellant’s application be dismissed for non-compliance with the implied undertaking in r 5(3) to proceed in an expeditious way, or alternatively, for want of prosecution (“the cross-application”).

Background

  1. [4]
    Following the costs order made by the Court of Appeal, the respondent filed and served on the appellant a costs statement dated 2 April 2020.
  2. [5]
    In response, the appellant filed and served a lengthy notice of objection on 3 July 2020, which took issue with almost every item contained in the costs statement.
  3. [6]
    Mr Douglas Kerr was appointed to conduct an assessment of the respondent’s costs payable by the applicant – pursuant to the costs order – at the hourly rate then prescribed in Item 9, Schedule 1, ‘Scale of Costs’ of the UCPR.
  4. [7]
    After considering the appellant’s notices of objections, the costs assessor allowed for deductions from the original costs statement. On 4 November 2020, the Certificate was filed. It assessed costs payable by the appellant to the respondent in the amount of $68,539.70. 
  5. [8]
    On 12 November 2020, the deputy registrar ordered that the appellant pay the respondent’s costs pursuant to the costs order and the Certificate.
  6. [9]
    On 24 November 2020, the appellant sent a request for reasons to the costs assessor in relation to the Certificate and the assessments made therein.
  7. [10]
    On 11 December 2020, the costs assessor issued written reasons in response to the request made by the appellant.
  8. [11]
    On 4 January 2021, the dissatisfied appellant filed the application which is now before this court, seeking the order identified at [2] or, alternatively, any other order pursuant to r 742(6)(e).

The cross-application

  1. [12]
    It is convenient to deal first with the cross-application. The respondent sets out the following history of the appellant’s application:

A little over 2 years ago, on 4 January 2021, the appellant (applicant) filed an application under r. 742 UCPR to review a decision included in a costs assessor’s certificate (review application). Since the applicant’s application was filed:

(a) On 5 February 2021, the matter came on for hearing before Bradley J. It was adjourned to 25 February 2021.

(b) On 25 February 2021, the matter came on before Rafter J.  The applicant says that the respondent was not prepared for the matter to be heard, but, in fact, the matter was listed only for directions before His Honour.

(c) On 29 March 2021, the matter came on before Dalton J. The applicant says that the respondent was not prepared for the matter to be heard, but, in fact, the matter was adjourned ‘because of the COVID lockdown situation’.

The applicant did nothing to advance his application in the period 29 March 2021 to 13 February 2023 (almost 2 years), when he emailed the Civil List Manager requesting that the application be re-listed.

  1. [13]
    Against that background, the respondent brings the cross-application and points to two sources of power under which the court may act.
  2. [14]
    The court has an inherent power to dismiss proceedings for want of prosecution. It is identified, specifically, in s 22 of the Civil Proceedings Act 2011 (Qld):

Dismissal of proceedings for want of prosecution

(1) This section applies to the District Court and Magistrates Courts.

Note— The Supreme Court has inherent power to dismiss proceedings for want of prosecution.

(2) If 2 years have passed since the last step was taken in a proceeding, the court may dismiss the proceeding.

(3) For this section, an application on which no order was made is taken not to be a step.

  1. [15]
    Further, r 5 of the UCPR provides:

Philosophy—overriding obligations of parties and court

(1) The purpose of these rules is to facilitate the just and expeditious   resolution of the real issues in civil proceedings at a minimum of expense.

(2) Accordingly, these rules are to be applied by the courts with the objective of avoiding undue delay, expense and technicality and facilitating the purpose of these rules.

(3) In a proceeding in a court, a party impliedly undertakes to the court and to the other parties to proceed in an expeditious way.

(4) The court may impose appropriate sanctions if a party does not comply with these rules or an order of the court.

Example—

The court may dismiss a proceeding or impose a sanction as to costs, if, in breach of the implied undertaking, a plaintiff fails to proceed as required by these rules or an order of the court.

  1. [16]
    It can therefore be accepted that the discretion exists and that the principles which govern its exercise are settled. As expressed in the respondent’s written submissions:

In Cooper v Hopgood & Ganim [1999] 2 Qd R 113, the Court of Appeal held that that exercising the court’s discretion to dismiss for want of prosecution should not be fettered by rigid rules, but required a decision to be reached on a balance of the relevant circumstances. Pincus JA quoted with approval a passage from the judgment of Walsh JA in Witten v Lombard Australia Ltd (1968) 88 WN (Pt 1) NSW 405 at 412:

Everything must depend upon the circumstances disclosed in each particular case. It is, of course, proper to consider whether any explanation or excuse has been offered for the delay, and whether any explanation or excuse that has been offered is credible and satisfactory. It is proper to consider whether or not there is evidence of particular prejudice to the opposing party by reason of the delay. When all relevant factors have been taken into account, a decision is then to be reached as to the manner in which the discretionary power should be exercised.

  1. [17]
    It can also be accepted, as per the respondent’s written submissions, that:

Unlike in the Magistrates and District Courts, the Supreme Court’s power to dismiss proceedings is not enlivened by the passing of the specified period of 2 years. It may be exercised at any time. Nonetheless, 2 years is a useful yardstick having regard to s 22 of the Civil Proceedings Act 2011 and r 389(2) UCPR.

  1. [18]
    And further, that:

The significance of a 2-year delay must also be judged in the context that r 742 requires that a review application must be filed within 14 days of receiving the costs assessor’s reasons or his/her certificate, i.e. expeditiously.

  1. [19]
    The respondent says that it is prejudiced by the continuation of the application in the following ways:

First, as has often been recognised in relation to delay, people should be able to arrange their affairs and utilise their resources on the basis that claim can no longer be made against them. The respondent has long-since paid the money it received from the applicant in payment of the costs order in part-discharge of its solicitors’ invoice. Moreover, the respondent was invoiced for legal fees on 16 April 2020. Thus, the time for it to seek assessment of those fees under Part 3.4, Division 7 of the Legal Profession Act 2007 (12 months) expired on 16 April 2020. Had the applicant has prosecuted his application with reasonable diligence, and been successful, the respondent could have – in turn – sought a review of its own legal fees. It is now out of time to do so.

Secondly, the applicant has filed yet more irrelevant material, further increasing the costs of the proceedings. An example is CD 50, a completely irrelevant affidavit which details various complaints by the applicant about how the respondent’s solicitors has served documents on him.

Thirdly, although not prejudice borne out of delay per se, the applicant’s conduct of the costs assessment to date, and this application has been highly prejudicial to the respondent. Primarily, that is because the has simply refused to focus his objections in a reasonable way. The notice of objections is 125 pages long and appears to include an objection to every item. Moreover, the objections do not comply with the approved form, which requires the objecting party to identify for each item the monetary value of the proposed reduction. This makes any assessment of his objections a very difficult task.

Fourthly, the costs assessor who performed the costs assessment, Duncan Kerr, is no longer a registered costs assessor. Thus, the court is no longer able to exercise its power under r. 742(6)(d) to refer anything to him for reconsideration, if that may have been a useful course.

  1. [20]
    Each point is well made. When regard is had to the chronology identified at [12], it can be seen that the relevant delay is in the order of 686 days – between 29 March 2021 and 13 February 2023 – a period of nearly two years.
  2. [21]
    The relevant factors were considered by McPherson JA in Cooper v Hopgood & Ganim:

Birkett v James suggests only some of the factors relevant in exercising the discretion, which include matters such as the duration of the time lapse involved; the cogency of any explanation for delay; the probable impact of procrastination on fading recollection; the death or disappearance of critical witnesses or records; costs already or likely in future to be expended or thrown away; the apparent prospects of success or otherwise at a trial of the action; and the progressively growing problem of effectively hearing and determining questions of fact arising out of events that have taken place many years before. The list is not, and is not intended to be, exhaustive; and it takes account of another factor that is often likely to be material, which is that ordinary members of the community are entitled to get on with their lives and plan their affairs without having the continuing threat of litigation and its consequences hanging over them. The psychological as well as the commercial effects of such a state of affairs ought not to be underestimated.

  1. [22]
    His Honour insisted that his list was non-exhaustive, and the Court of Appeal has considered the issue in other decisions.[2] In determining this application, I have taken into account the fact that the appellant’s explanation for the delay is unconvincing and unsatisfactory. It can be allowed that he has, of his own volition, entangled himself in litigation that might have occupied some of his time. However, he has failed to explain with lucidity any particular reason or circumstance that can account for the whole of the near two-year delay. The respondent’s case for dismissal was strong.
  2. [23]
    Ultimately, however, the cross-application must be dismissed. As demonstrated below, the appellant has a legitimate grievance with the process by which his objections were considered.
  3. [24]
    In a situation where there is demonstrable merit in at least part of the appellant’s argument, it is not appropriate to uphold an application that would prevent such meritorious argument from being considered.
  4. [25]
    This leaves for consideration the appellant’s application to set aside the costs assessor’s certificate.

Application to set aside

  1. [26]
    18 grounds are identified in the application. They fall broadly into three categories.

Bias

  1. [27]
    Grounds 15, 16 and 17 all aver bias on the part of the assessor. They are not substantiated. Although it is claimed that the assessor made “derogatory” comments, these were directed at the appellant’s submissions, not at him personally. The fact that the assessor did disallow 63 items tells against any assertion that he was “incapable of alteration” or “not open to persuasion”.
  2. [28]
    Even if these grounds were made out, the relief granted would be an order that the appellant’s objections should be reconsidered by a different decision maker, as to which, see [52] below.

Errors in exercise of discretion

  1. [29]
    Grounds 1, 2, 3, 4, 11 and 18 effectively invite the court to re-examine matters that were in the costs assessor’s discretion. They did not raise issues that were appropriate for review in this court. As observed by Dalton J (as her Honour then was) in Courtney v Chalfen (No 2) [2022] QSC 142 at [29], “the cases as to when a court will review a costs assessor’s exercises of discretion make it clear that a court will very rarely re-examine matters which are in a costs assessor’s discretion”. It will not happen in this case. Nevertheless, issues raised under this heading do inform the nature of the relief that will be ordered.
  2. [30]
    In respect of ground 18 only, the appellant’s view of the law is misconceived. The appellant submitted that as the costs assessor reduced the initial costs statement by more than 15%, he should not have been required to pay the costs of the costs assessment. The appellant supports this decision by reference to s 342(2)(a) of the Legal Profession Act 2007 (Qld). However, that provision operates in circumstances where a client seeks an assessment of costs payable to their lawyer. It does not apply in circumstances such as this, where the appellant disputes party-party costs.
  3. [31]
    The appellant also pointed to the decision of Jackson J in Gladstone Area Water Board & Anor v AJ Lucas Operations Pty Ltd [2015] QSC 52, which considered              r 735 of the UCPR. It is not relevant. Rule 735 only operates in circumstances where costs are payable “out of a fund”, a feature which is not present here.
  4. [32]
    Once again it is the case that, even if any of the grounds in this category succeeded, I would have ordered that the appellant’s objections be considered by a different decision maker. He will find himself in no worse position for having failed on these grounds.

Insufficiency of reasons

  1. [33]
    The appellant has, in grounds 5, 6, 7, 8, 9, 10, 13 and 14, taken issue with the adequacy of the reasons provided by the costs assessor. It is not necessary to adjudicate on each individual ground. The process was in fact flawed.
  2. [34]
    The appellant’s notice of objection was filed and served in response to the costs statement and was required to adhere to the terms of the UCPR. Rule 706(2) requires that a notice of objection must:
    1. number each objection; and
    2. give the number of each item in the costs statement to which the party objects; and
    3. for each objection – concisely state the reasons for the objection identifying any issue of law or fact the objector contends a costs assessor should consider in order to make a decision in favour of the objector.
  3. [35]
    During the course of oral submissions, the respondent argued that the notice of objection was not compliant with the UCPR and that it was not in the correct form.[3]
  4. [36]
    The notice of objection contained a total of 413 objections. Some of these were, on their face, deficient in that they did not relate to specific items but were rather directed at the “whole of this cost statement” or at “numerous items”.[4] Another was expressed to be concerned with “regarding contrivances”.[5]
  5. [37]
    However, the balance of the objections do purport to relate to specific items in the costs statement. Frequently, an objection is said to relate to more than one item, and the same reasons for the objection are averred to apply to all of them.
  6. [38]
    In many cases, the objection is accompanied by an insistence that the item be “disallowed”. In others, an alternative calculation is suggested. For some items it is submitted that an item be discounted by 100%. In the case of item 4, on the other hand, the reduction suggested is for $0.25. In any event, there is – as is required – a mathematical dimension to most of the appellant’s objections.
  7. [39]
    In sum, and notwithstanding the fact that objection was taken in sometimes trivial terms to almost every item in the assessment, the objection was broadly compliant. Having so found, I shall not be distracted by the controversy about the actual form that was used.[6]
  8. [40]
    Confronted then with the appellant’s notice, the costs assessor[7] undertook an assessment which was limited to the matters raised in the appellant’s notice of objection.  The Certificate, when filed on 4 November 2020, was accompanied by a schedule that records numerous “Disallowances”. They were identified by item number and quantified in dollars.
  9. [41]
    Following the filing of the Certificate the appellant was entitled, pursuant to r 738, to request reasons. Such a request should be a simple exercise. The rules require only that within 21 days of receiving a copy of the certificate of assessment, a party make a written request to the costs assessor for reasons for any decision included in the certificate.
  10. [42]
    The appellant, however, did not limit himself to that which was required. His “request” ran for 80 paragraphs over 18 pages. It contains numerous assertions and demands for information. It is expressed in terms that are strident and which were also likely to provoke an argumentative response. Understandably, but unfortunately, that is what the costs assessor provided.
  11. [43]
    The first part of his reasons was sound enough. The costs assessor did, in fact, correctly define the nature of the assessment process that he was required to undertake, when he observed that it was confined to a “contest, item by item, between the claim and the objection…” Had his reasons addressed themselves to that contest there would be no issue.
  12. [44]
    However, having set himself the task of resolving an “item by item” contest, the costs assessor became distracted. Perhaps because of the slavish way in which the objections had been taken, he may have taken the view that his task had been set mischievously. That would account for his observation that “on the whole the objections were a complex and intricate shemozzle which failed to reveal understanding of the current requirements for same to be determined”.
  13. [45]
    The reasons asserted that consideration had been given to “every objection submitted in the 180 page document delivered in response to the 76 page costs statement before determining the costs assessment”. Reference was made to the schedule of disallowances, but there was no explanation as to why, apparently some objections had succeeded but others had failed. As to the balance, it was observed that:

The appellant had been unable to lodge complying objections to the claims in the cost statement, and there for the claims have been allowed. (sic).

  1. [46]
    It is clear enough, when the reasons are read as a whole, that this remark was directed at the request for reasons, and not the notice of objection itself. The costs assessor’s words may have been apt to describe the request, but it would not be a fair description of the notice of objection. The objection may have been obtuse and pedantic, but it was, essentially at least, in required form, structured and fit for purpose.
  2. [47]
    As a result, all of the reasons that cite lack of “compliance” in the request are misdirected. There was no requirement that the applicant “comply” with any particular format when requesting reasons. This misapprehension is another basis on which it can be said that the reasons are inadequate for the purposes of r 738.[8]
  3. [48]
    Since so much of the costs assessor’s reasons are couched in terms which address the appellant’s request for reasons rather than the objections to the assessment, the appellant has established a valid concern.

Relief

  1. [49]
    The rules do not make specific provision for that which should follow when it is demonstrated that reasons were inadequate. On application of first principles, the appropriate remedy would ordinarily be an order made under r 742(6). In the circumstances, however, the relief available under that rule is neither appropriate nor even available. Nor is it appropriate for the court to exercise for itself the powers of the costs assessor. If there is to be a re-assessment it will involve a line-by-line analysis of items which in their entirety barely reach half the jurisdictional limit of the Magistrates Court. The exercise involves the re-examination of matters which are in a cost assessor’s discretion. That is not the sort of issue on which the parties have a right to be determined by a judicial tribunal, and is in fact a “totally unsuitable” exercise for this court.[9]
  2. [50]
    It has been confirmed that Mr Kerr no longer appears on the register of approved cost assessors.[10] He retired at some point prior to 17 June 2022. As noted above at [12], the appellant did not advance this application – which has been on foot since January 2021 – until February 2023. It is his delay that has compromised the possibility of referring the matter back to Mr Kerr. Even if Mr Kerr was willing to reconsider the matter, it would not be open for him to do so now that he no longer works as a court appointed costs assessor.
  3. [51]
    I note the appellant’s submission that a second costs assessment would “violate the doctrine of res judicata”.[11] However, for so long as the rules conferred upon the appellant the rights he has exercised, there was no finality to the assessment. The first assessment may have been, as the appellant submits, “vitiated through inadequate reasons”. That does not mean that the issue has been finalised as between the parties,  so there is no room for the application of that doctrine.
  4. [52]
    In these circumstances, having regard to the fresh affidavit material and the parties’ further submissions, I consider that the only form of relief appropriate is referral to another costs assessor.
  5. [53]
    The respondent submits that if this is to occur, a fresh notice of objection should be prepared. I have already found that the notice of objection was, broadly, fit for purpose, but if the matter is to be revisited the notice should be made in the correct form.
  6. [54]
    The respondent also says that if this is the course to be adopted, the appellant should provide security for the costs of the assessment. That submission has merit. The requirement for such security is necessary so as to procure the proper and effective administration of justice in the circumstances of this case. As such, it is appropriate to exercise the court’s inherent jurisdiction to make such an order, which would also be an order that was “appropriate” for the purposes of r 742(6)(e).[12] In the circumstances, it is appropriate for the appellant, if he wishes to persist with his review of an already discounted certificate, to pay into the court the sum of the new assessor’s estimate. It is also appropriate, in light of this matter’s history, to make provision for any further request for reasons.
  7. [55]
    Setting the terms of the referral involves the exercise of a discretion. That discretion must be exercised against a background in which:
    1. the appellant objected to almost every item in the costs assessment;
    2. some of the objections were trivial to the point of being scandalous – for example, an objection about 25 cents;
    3. the appellant did nevertheless, have some success in those objections; but
    4. there are no demonstrated prospects of further meaningful revision.
  8. [56]
    The respondent has secured the consent of a new costs assessor, Mr Damien Freeman, who has provided an estimate of the fees involved in both the fresh assessment, and any request for reasons that may flow from that assessment. The appellant contends that the costs assessor nominated by the respondent is a “novice” and should not be entrusted because he has been provided with the request for reasons and Mr Kerr’s response. This is no basis on which to disqualify Mr Freeman. There can hardly be a complaint about an assessor seeing a document that so clearly articulates the appellant’s own positions, and Mr Kerr’s response, once viewed in the light of this judgment, can be of no significant to any future assessment.
  9. [57]
    The appellant, in his submissions of 3 August 2023, advised that he had secured the consent of four costs assessors to conduct the future assessment. The appellant did not, in his submissions, provide any estimates from these assessors in relation to the cost of the future assessment, or of responding to any request for reasons that might follow. The appellant did, however, advise that each consented to complete the task at their listed rate, as stipulated on the Register of Approved Costs Assessors. The appellant further submitted that the respondent, or this Court, could select from the panel of assessors he provided or direct the registrar to appoint any future assessor.
  10. [58]
    In the circumstances, it will be ordered that, should the appellant maintain his desire for a new costs assessment, and should he pay into court the estimated amount that will be required to cover this process (and any further request for reasons), the registrar choose one of the (total of) five nominated costs assessors to complete the exercise.

Conclusion

  1. [59]
    The self-represented appellant has made a valid argument on this application, but there is not, in the materials, any sensible basis upon which it could be thought that he will actually improve his position. It is to be remembered that he has succeeded only in impugning the reasons, and there is no other basis upon which to question the assessment itself. Deficiency in the reasons entitles the appellant to a review of the assessment if he does in fact want it, but unless he pursues this course, the assessment retains its validity. Indeed, given that any fresh assessment would involve a reconsideration of Mr Kerr’s disallowances, he may be worse off. In all of the circumstances, it would be inappropriate to make any order that the respondent disgorge any monies already received by it, or any other order as to costs at this time.
  2. [60]
    Further, the matter cannot continue to drift. If the appellant wishes to take advantage of the opportunity to have the matter reconsidered, he must take these steps by 27 October 2023. If he fails to do that, then the respondent, as a successful litigant should get its costs of the appeal. The orders are calculated to facilitate this position.

Annexure A

Orders

Part A

  1. The cross-application dated 17 March 2023, brought by the respondent is dismissed.

Part B

2A.  If the Appellant pays:

  1. $13,200.00 (in a form acceptable to the Registrar) into Court for security for costs of the new costs assessment by 4:00pm on 27 October 2023; and
  2. $11,000.00 (in a form acceptable to the Registrar) into Court for security for costs of reasons for the new costs assessment by 4:00pm on 27 October 2023; and

2B.  The Appellant serves a supplementary notice of objection on the Respondent that:

  1. is on the correct court form, being Uniform Civil Procedure Rules 1999 (Qld) Form 61; and
  2. directly and concisely states the reasons for each objection that identifies the issues of law or fact on which he contends the costs assessor should resolve any costs disputes in his favour in compliance with rule 706(2)(c) of the Uniform Civil Procedure Rules 1999 (Qld).

 by 4:00pm on 27 October 2023; then

  1. Upon completion of the steps identified in 2A and 2B it is ordered that:
    1. The application is allowed;
    2. The Certificate of Mr Doug Kerr be set aside;
    3. The Registrar’s Costs Order be set aside;
    4. A new costs assessment be undertaken.
  1. Upon completion of the steps identified in 2A and 2B, by 4:00pm on 30 October 2023, the assessing registrar is to select one of the following to act as a costs assessor in this proceeding:
  1. Mr Peter Arthur;
  2. Mr Adam Bloom;
  3. Ms Anne Campbell;
  4. Ms Dipal Prasad; or
  5. Mr Damien Freeman.
  1. An amount of up to the amount specified in order 2A(i) above is to be released to the Costs Assessor upon tendering their certificate of costs with respect to the new costs assessment and any residual amount is to be released to the Appellant; and
  1. If the new costs assessment is the subject of a further request by the appellant for reasons, an amount of up to the amount specified in order 2A(ii) above is to be released to the costs assessor upon providing their further reasons for their decision and any residual amount is to be released to the Appellant; and
  1. The question as to costs of these applications is reserved pending the outcome of any new costs assessment.

Part C (in the alternative to Part B)

  1. If the Appellant does not pay into Court $24,200.00 by the time specified in accordance with this Order or does not, after paying that sum into Court, comply with Order 2B by 4pm on 27 October 2023, then:

8(a)    The Appellant’s application for review of the costs assessment filed   January 2021 be dismissed; and

8(b)    There is no other order as to costs.

Footnotes

[1]  Concomitantly, the applicant also seeks that the Order of the deputy registrar filed on 12 November 2020, which was made having regard to the Certificate, be set aside.

[2] See for example, Tyler v Custom Credit Corp Ltd [2000] QCA 178; Quinlan v Rothwell & Anor [2001] QCA 176

[3]  Being Form 061 under ‘Uniform Civil Procedure Rules’ contained on the Queensland Court’s Website: https://www.courts.qld.gov.au/about/forms?root=84820

[4]  CD 11 – Objections 1, 2, 3 and 12.

[5]  CD 11 – Objection 11.

[6]  However, the appellant will be directed, should he wish to comply with the orders flowing from this judgment, to file his notice of objection on the correct form, being Uniform Civil Procedure Rules 1999 (Qld) Form 61 – see [53]

[7]  Appointed in accordance with r 713 of the UCPR

[8]  The assessor also complained that he was not going to respond to a number of the queries that were raised in the request for reasons – but he did not have to.

[9]Courtney v Chalfen (No 2) [2022] QSC 142 at [29].

[10]  On 13 June 2023, the appellant provided his written submissions and draft orders. On 5 July 2023, the respondent provided their submissions. 

[11]  Contained in the appellant’s written submissions of 3 August 2023.

[12]  See [2] above.

Close

Editorial Notes

  • Published Case Name:

    Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc

  • Shortened Case Name:

    Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc

  • MNC:

    [2023] QSC 214

  • Court:

    QSC

  • Judge(s):

    Callaghan J

  • Date:

    27 Sep 2023

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Cooper v Hopgood & Ganim[1999] 2 Qd R 113; [1998] QCA 114
1 citation
Jump To
Cite 1 - [1999] 2 Qd R 113
Courtney v Chalfen (No 2) [2022] QSC 142
2 citations
Jump To
Cite 1 - [2022] QSC 142
Cite 2 - [2022] QSC 142
Gladstone Area Water Board v AJ Lucas Operations Pty Ltd [2015] QSC 52
1 citation
Jump To
Cite 1 - [2015] QSC 52
Public Trustee v Hermann (1968) 88 W.N. Pt 1
1 citation
Jump To
Cite 1 - (1968) 88 W.N. Pt 1
Quinlan v Rothwell[2002] 1 Qd R 647; [2001] QCA 176
1 citation
Jump To
Cite 1 - [2001] QCA 176
Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc [2020] QCA 2
1 citation
Jump To
Cite 1 - [2020] QCA 2
Tyler v Custom Credit Corp Ltd [2000] QCA 178
1 citation
Jump To
Cite 1 - [2000] QCA 178

Cases Citing

Case NameFull CitationFrequency
Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc [2025] QCA 632 citations
Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc [2024] QSC 1974 citations
Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc (No 2) [2024] QSC 2503 citations
Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc (No 3) [2024] QSC 3032 citations
1

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