Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc (No 2)
[2024] QSC 250
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Appeal Determined (QCA)
- Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc (No 2)[2024] QSC 250
- Add to List
Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc (No 2)[2024] QSC 250
Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc (No 2)[2024] QSC 250
SUPREME COURT OF QUEENSLAND
CITATION: | Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc (No 2) [2024] QSC 250 |
PARTIES: | JAMES THOMPSON (applicant) v CAVALIER KING CHARLES SPANIEL RESCUE (QLD) INC (respondent) |
FILE NO/S: | BS 12173 of 2018 |
DIVISION: | Trial Division |
PROCEEDING: | Application |
ORIGINATING COURT: | Brisbane Supreme Court of Queensland |
DELIVERED ON: | 8 November 2024 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 27 September 2024 Additional Submissions received: 4 October 2024 15 October 2024. 17 October 2024 |
JUDGE: | Treston J |
ORDER: |
|
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – where there is an extensive history of litigation between the parties – where a costs order was made against the applicant in favour of the respondent – where the costs were paid – where a costs assessor was appointed and a costs certified was filed – where the the costs certificate was thereafter set aside – where a new costs assessor was appointed – where the applicant filed an application seeking indiscernible relief – whether, if the application was construed as one for restitution, there ought to be a stay granted on repayment of those moneys Commonwealth v McCormack (1984) 155 CLR 273 Holdcroft v Market Garden Produce Pty Ltd [2001] 2 Qd R 381, cited TCN Channel 9 Pty Ltd v Antoniadis (1999) 48 NSWLR 381, cited Thompson v Cavalier King Charles Spaniel Rescue (QLD) Inc [2020] QCA 2 Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc [2022] QSC 82 Thompson v Cavalier King Charles Spaniel Rescue (QLD) Inc [2023] QSC 214 Thompson v Cavalier King Charles Spaniel Rescue (QLD) Inc [2024] QSC 197, cited |
COUNSEL: | The applicant appeared on his own behalf C Templeton for the respondent |
SOLICITORS: | ACLG Lawyers for the respondent |
Introduction
- [1]On 3 July 2024, the applicant filed an application for orders described as follows:
“1.That the Court make the appropriate orders in order to regularise the anomalous situation existing at the current time.
- That the Court make any order or give directions the court considers appropriate after having considered the facts that led to the application.”
- [2]The relief sought by the application was indiscernible.
- [3]To understand the application, one needs to look back at part of the matter’s long and chequered history.[1]
- [4]I have adopted the following chronology from two earlier decisions in this matter.[2]
- [5]In 2020, following an unsuccessful appeal to the Court of Appeal, a costs order was made against the applicant (the 2020 costs order).[3]
- [6]The respondent filed and served on the applicant a costs statement dated 2 April 2020.
- [7]In response, the applicant filed and served a lengthy notice of objection on 3 July 2020, which took issue with almost every item contained in the cost statement.
- [8]Mr Douglas Kerr was appointed to conduct an assessment of the respondent’s costs payable by the applicant.
- [9]After considering the applicant’s notice of objections, the costs assessor allowed for deductions from the original costs statement. On 4 November 2022, the certificate was filed (the Costs Certificate). It assessed costs payable by the applicant to the respondent in the amount of $68,539.70.
- [10]On 12 November 2020, the Deputy Registrar ordered that the applicant pay the respondent’s costs pursuant to the costs order and the Costs Certificate.
- [11]On 24 November 2020, the applicant sent a request for reasons to the cost assessor in relation to the Costs Certificate and the assessments made therein.
- [12]On 11 December 2020, the costs assessor issued written responses in response to the request made by the applicant.
- [13]The costs were paid by the applicant. The date that he did so is not apparent on the material, but the respondent agrees that he has done so. The payment of them is at the heart of this application.
- [14]On 4 January 2021, the applicant filed an application to set aside the Costs Certificate.
- [15]That application was not diligently pursued. It was ultimately heard in March 2023, and after a long series of additional submissions between June 2023 and September 2023, on 27 September 2023, the applicant successfully obtained orders setting aside the Costs Certificate and the Registrar’s costs order against him. That application was heard by Callaghan J. At that time, consequential orders and directions were also made for the further conduct of the costs assessment, contingent on the applicant paying monies into court and serving further material (which he did).
- [16]This compliance triggered the Registrar’s selection of a new cost assessor, one of five cost assessors listed in that order. From that list, Peter Arthur was selected and appointed as a cost assessor on 25 October 2023.
- [17]On 6 February 2024, Mr Arthur requested the solicitors for the first respondent provide certain documents on their file in support of items claimed in the costs statement. A dispute arose regarding the production of the documents.
- [18]On 22 March 2024, Mr Arthur made a series of directions in relation to the production issue (the 22 March directions).
- [19]On 3 July 2024, the applicant filed this application.
- [20]On 18 July 2024, Muir J set aside the 22 March directions issued by Mr Arthur and directed he issue further directions to the parties consistent with her Honour’s reasons.
- [21]On 20 September 2024, Mr Arthur made the further directions in accordance with the order of Muir J.
- [22]This application was heard on 27 September 2024.
- [23]At the hearing, and only with the assistance of the respondent, it became clear that the relief that was sought related back to the 2020 costs order. Having succeeded in having the Costs Certificate set aside in September 2023, the relief the applicant intended by the orders “…to regularise the anomalous situation existing at the current time” was in fact the return of the monies he paid in satisfaction of the Costs Certificate.
- [24]The applicant does not, and cannot, seek to set aside the 2020 costs order itself. Rather, his application proceeded on the basis that he paid the amount in satisfaction of the Cost Certificate, and that Certificate having been set aside, he seeks his money back, with interest.
The submissions
- [25]The applicant submits that he has made payments flowing from the Costs Certificate and the Registrar’s order of 12 November 2020 “long ago”.[4] He does not say when he made those payments, but the respondent agrees he has done so.
- [26]That Certificate and order, having been set aside, is said by the applicant to “no longer exist”. Accordingly, the applicant submits that the respondent has received money to which it has no legal entitlement. Without an order that the money be repaid, the applicant contends he will be placed in the position where he will have to pay the legal costs for a second time once the new Costs Certificate is issued. He submits that it would be unjust for him to have to pay the costs twice.
- [27]In addition to the repayment of the monies to him that he paid in accordance with the Costs Certificate, he seeks interest on all the amounts paid, compounded monthly, as well as interest at the “post-judgment rate” which he contends ought to be applied from the time of Callaghan J’s orders of September 2023.
- [28]The respondent accepts that a party who has satisfied a judgment for the payment of money is prima facie entitled, on the reversal of the judgment, to repayment of the money paid.[5] However, the respondent contends that that sort of restitutionary relief is too late as it ought to have been sought by the applicant at the hearing before Callaghan J, and it was not. Nevertheless, the respondent contends that Callaghan J considered the issue of the disgorgement of the monies and held, at [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.”
(emphasis added)
- [29]The applicant contends that he did bring the issue of restitution to Callaghan J’s attention in 2023, but says that his Honour “did not enable himself to make a properly reasoned judgment on that matter”.[6] In this way, it seems to me that the applicant tried to re-argue the matter already decided by Callaghan J. Naturally, he is not to be given the opportunity to do that. The applicant did not appeal Callaghan J’s decision.
- [30]Alternatively, the applicant tried to argue that the matter was not squarely raised before Callaghan J, suggesting that the transcript of the whole hearing would need to be reviewed to understand whether the issue was properly argued. I reject this submission. The judgment makes it clear his Honour considered the issue.
- [31]The applicant does not point to any facts suggesting the circumstances now are so different to those before Callaghan J that this court should consider the application afresh.
- [32]The respondent submits that circumstances have not changed such as would allow this court to now make an order for disgorgement of those monies. This is particularly so, the respondent submits, where the new costs assessor (Mr Arthur) was appointed in October 2023 and, given that the assessment process has been on foot for a year, one would expect it to be completed imminently. Furthermore, as Callaghan J remarked (extracted above), the respondent contends there is a real possibility that the applicant will have to pay more money on the fresh assessment than that which he has already paid.
Resolution of the application
- [33]The respondent’s concession that a party who satisfies a judgment for the payment of monies is prima facie entitled to the repayment of those monies upon the reversal of the judgment is an appropriate concession. However, the Court of Appeal’s order has not been reversed in the way described in Holdcroft’s case. In fact, the costs order still stands. It is the assessor’s Costs Certificate and the consequential Registrar’s order for costs that have been set aside. Holdcroft’s case is analogous, but not directly to the point.
- [34]I am not prepared to conclude that restitution is available to the applicant on application as filed. The relief sought was, as I have already stated, indiscernible. The application ought to be dismissed.
- [35]Even if I were to conclude that such relief was open on the application as filed, I would not have ordered it, because I consider that there are sound reasons for ordering a stay.[7]
- [36]First, the costs order itself has not been disturbed. As a consequence, there can be no doubt that Mr Thompson will be ordered to pay costs, it is only the quantum of them that is still to be determined. There is no particular injustice to him in not directing that the monies be repaid to him when it is inevitable that he will have to meet the new assessment of costs in due course, subject to any proper objection procedure.
- [37]Second, even if I am wrong about that injustice to him, there are factors to consider in terms of the injustice to the respondent which ought to be balanced against any injustice to Mr Thompson. The first is Mr Thompson’s delay in bringing this application. The matter was before Justice Callaghan in March 2023 and thereafter when his Honour received additional submissions in June, July, August and September 2023. The applicant could have sought orders for restitution then, or more fully articulated the claim which he says he made, but he did not. That was, in fact, the proper time to raise the restitution issue.
- [38]Third, despite not raising it properly, Callaghan J nevertheless considered and dealt with it at [59] which I have set out above.
- [39]Fourth, restitutionary defences might now be available to the respondent, including a change of position defence because the respondent paid the costs to its lawyers in discharge of their bill. Given the respondent’s financial records which are in evidence, and the respondent’s status as a small not-for-profit association, the repayment of such a significant sum of money some considerable time after it was paid to the respondent can be fairly inferred as one that would cause significant hardship to the respondent.[8]
- [40]Fifth, because change of position defences might be available to the respondent (or indeed other defences), it would ordinarily be appropriate for the matter to procced by way of pleadings. Given the tortured nature of this proceeding, this should be avoided.[9]
- [41]Sixth, given that Mr Arthur was appointed in October 2023 and has recently made directions, it is fair to assume that that process ought to be well underway and a further cost assessment ought to be available shortly. Whilst the history of the matter suggests that Mr Thompson might not accept the cost assessment, in due course it will be resolved one way or the other. If ultimately the amount that the applicant has to pay is less than that which he has already paid, that would be the appropriate time to consider a claim by the applicant for interest on the difference between the amount paid and the amount ultimately ordered.
- [42]Seventh, the applicant is in no danger of having to pay the costs twice. Whether the second costs assessment ultimately exceeds the first or not, the applicant will get credit for the sum already paid. The complaint that he will have to pay twice is at the heart of his application, and that complaint is misconceived.
- [43]Eighth, the present application is just one in a long line of applications brought by Mr Thompson that seems focussed on ignoring the implied undertaking to the court and to the other parties to proceed expeditiously at a minimum of expense under r 5 of the UCPR.[10] The applicant has not done so, bringing this application so long after it ought to have been formally raised before Callaghan J in March 2023.
- [44]The sensible balancing of these rights suggests that there ought to be a stay of execution in relation to the repayment of the costs until the conclusion of the second costs assessment and the final issuing of a Costs Certificate and Registrar’s order (including the expiration of an appeal period) if any.
Costs
- [45]The applicant is ordered to pay the costs of this application on the standard basis.
- [46]The application as drafted was, as I said at the outset, one where the relief sought was indiscernible. I am satisfied that the respondent has been put to significant cost in attempting to understand and then assist the court to articulate the basis of the applicant’s application. Had the relief the applicant sought been apparent on the face of the material, the respondent might well have been in a position to suggest a resolution of it, including by reference to the stay which I have granted, but it was denied the opportunity to do so having regard to the form of the application. In the circumstances, even had I not dismissed the application, and merely granted the stay, I would have ordered the applicant to pay the respondent’s costs in any event.
- [47]I would be prepared to fix the costs. I direct:
- the respondent to file and serve any affidavits and submissions as to costs by 4pm on Friday 15 November 2024. The submissions should not exceed two pages.
- I direct the applicant to file and serve any submissions in reply by 4pm on Friday 22 November 2024. The submissions should not exceed two pages.
Footnotes
[1]Thompson v Cavalier King Charles Spaniel Rescue (QLD) Inc [2024] QSC 197 at [4] per Muir J.
[2]Thompson v Cavalier King Charles Spaniel Rescue (QLD) Inc [2023] QSC 214 per Callaghan J; and Muir J’s decision above.
[3]Thompson v Cavalier King Charles Spaniel Rescue (QLD) Inc [2020] QCA 2.
[4] Applicant’s submissions at [12].
[5]Holdcroft v Market Garden Produce Pty Ltd [2001] 2 Qd R 381 at 391.
[6] Applicant’s submissions at [13].
[7]TCN Channel 9 Pty Ltd v Antoniadis (1999) 48 NSWLR 381 at [20].
[8]Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc [2022] QSC 82 per Jackson J at [8] and [9].
[9] These proceedings have been the subject of nine judgments of the Trial Division of the Supreme Court of Queensland: [2016] QSC 237; [2020] QSC 234; [2020] QSC 277; [2021] QSC 322; [2022] QSC 82; [2022] QSC 161; [2022] QSC 300; [2023] QSC 214; and [2024] QSC 197; six judgments of the Queensland Court of Appeal: [2015] QCA 10; [2019] QCA 110; [2020] QCA 2; [2022] QCA 149; [2023] QCA 21; [2023] QCA 164; and one unsuccessful application for special leave to appeal in the High Court of Australia: [2020] HCASL 91.
[10]Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc [2022] QSC 82 per Jackson J at [5], [67], [70] and [78].