Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc (No 3)
[2024] QSC 303
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- Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc (No 3)[2024] QSC 303
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Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc (No 3)[2024] QSC 303
Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc (No 3)[2024] QSC 303
SUPREME COURT OF QUEENSLAND
CITATION: | Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc (No 3) [2024] QSC 303 |
PARTIES: | JAMES THOMPSON (applicant) v CAVALIER KING CHARLES SPANIEL RESCUE (QLD) INC (respondent) |
FILE NO/S: | BS 12173 of 2018 |
DIVISION: | Trial Division |
PROCEEDING: | Applications |
ORIGINATING COURT: | Supreme Court of Queensland at Brisbane |
DELIVERED ON: | 5 December 2024 |
DELIVERED AT: | Brisbane |
HEARING DATE: | On the papers |
JUDGE: | Treston J |
ORDER: | I fix the costs of the application filed 3 July 2024 in the amount of $11,500. |
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – REGULATED COSTS: GROSS OR FIXED COSTS, LUMP SUM ORDERS OR CAPPING ORDERS AND LIKE MATTERS – where the applicant’s application was dismissed and a costs order was made against him – where it was indicated that costs would be fixed, and the parties were directed to file material to that effect – where the applicant submits that costs ought to not be fixed – where the matter is a simple one – where there is a protracted history of the applicant taking querulous and argumentative stances as to the assessment of costs – where the respondent has provided reliable material as to the quantum of costs – whether costs ought to be fixed Uniform Civil Procedures Rules 1999 (Qld) r 687(2)(c) Australian Securities and Investments Commission v Atlantic 3–Financial (Aust) Pty Ltd (No 3) [2008] 2 Qd R 298, cited Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119, cited Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc [2024] QSC 250, cited Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc [2023] QSC 214, cited |
SOLICITORS: | The applicant appeared on his own behalf ACLG Lawyers for the respondent |
- [1]On 8 November 2024 I dismissed the applicant’s application filed 3 July 2024 and ordered that the applicant pay the costs of the application on the standard basis.[1] I indicated I would be prepared to fix the costs and I directed:
- that the respondent file and serve any affidavits and submissions as to costs by 4.00pm on Friday 15 November 2024 and that the submissions should not exceed two pages; and
- that the applicant file and serve any submissions in reply by 4.00pm on Friday 22 November 2024, and that the submissions should not exceed two pages.
- [2]The applicant alleges that the respondent did not file affidavits or submissions within the time limited for doing so, and the electronic court file suggests that is the case. Nevertheless, the respondent’s submissions contend that the affidavit was filed in compliance with the order on 15 November 2024. It may well be that the electronic file is inaccurate. Either way, a review of the applicant’s submissions to fixing costs plainly demonstrates that he was served with the affidavit and submissions relied upon by the respondent to fix those costs; he is at no disadvantage if the material was served upon him but not filed.
- [3]Further, while the applicant takes issue with the respondent’s non-compliance with my directions of 8 November 2024, his own compliance with those directions was doubtful. Whilst it is true that he has confined his submissions to two pages, in accordance with my direction, he also provided the court with a 15 page schedule of objections as an attachment to those submissions on the basis it seems, that this court would act as a taxing officer for the purpose of fixing the costs.
- [4]The power to fix costs arises under r 687(2)(c) of the UCPR. The purpose of making such an order is to save the parties the time, trouble, delay, expense and aggravation of protracted litigation arising out of taxation.[2] The power to make such an order should be exercised only when the court considers it can do so fairly between the parties, which includes the provision of sufficient evidence in arriving at an appropriate sum on the material available.
- [5]In the circumstances, the issues to be determined are firstly whether the court should fix the costs ordered to be paid pursuant to the costs order. If the answer is yes, the second step is to determine the amount of those fixed costs. If the court does not exercise the discretion to order fixed costs, then the issue is what order should be made on the application.[3]
- [6]The costs in these proceedings are standard costs in an application. The total costs sought by the respondent are $11,500 inclusive of counsel’s fees of $6,086.52. The costs incurred are in fact said to be $12,749,00 plus counsel’s fees of $6,086.52, a total of $18,835.52. The amount claimed is therefore about 61 per cent of the total invoiced.
- [7]For the reasons which I set out below it is appropriate for the court to fix costs in the circumstances of this case, and to proceed to the second step of determining those costs.
- [8]First, although the relief sought by the application was indiscernible, it ultimately was dealt with in a relatively short period of time and was not unduly complicated.
- [9]Second, because of the relatively short time the matter took, the fees would not be expected to be significant, which they are not having regard to the total claimed.
- [10]Third, the matter already has a long and chequered history.[4]
- [11]Fourth, the respondent has a history of taking a pedantic approach to the assessment of costs, including an approach whereby he objects to almost every item in a costs assessment, and sometimes takes objections that are trivial to the point of being scandalous.[5] He has adopted the same approach again here.
- [12]Fifth, the fixing of costs will save the parties the time, trouble and delay of an assessment.
- [13]Sixth, the fixing of costs will also serve a broader purpose in the administration of justice by saving the court’s precious resources in avoiding another protracted costs dispute.
- [14]Seventh, the 15-page notice of objection which the applicant delivered, unsolicited, and in breach of the direction that I made on 8 November 2024, demonstrates that the applicant proposes to continue to approach every aspect of this matter in a way which is both querulous and argumentative.
- [15]Eighth, I am satisfied that there is reliable evidence as to the quantum of the applicant’s costs. Mr Delaney who has provided the affidavit in support of the costs assessment is an experienced solicitor having been admitted to practice since September 2006. Prior to that time, in 2005 he had been appointed to the position of Deputy Registrar and Deputy Sheriff of the Supreme Court of Queensland and, in that role, assisted in assessing and taxing orders which were awarded in proceedings in the Supreme and District Court of Queensland. He therefore has more than the usual level of experience in the assessment of costs.
- [16]Ninth, the approach I take will prevent yet another further argument.
- [17]The applicant submits that I ought not to approach the task of fixing costs for a range of reasons which includes:
- the late delivery of the affidavit and submissions in respect of fixing costs, and potentially the fact that the documents were not filed at all. This is an irrelevant consideration to the substantive issue;
- on previous occasions, costs assessed by Mr Delaney on an indemnity basis were reduced on assessment by almost 27.5 per cent. On three other occasions, costs on the standard basis were reduced by about 20 per cent, very nearly 27 per cent and very nearly 37 per cent on assessment. The unstated inference here appears to be a submission that the costs assessments delivered by Mr Delaney are unreliable. I reject that inference, but in any event the reduction of the fees invoiced by 39 per cent would adequately address that issue. Furthermore, the court can take into account that reductions to costs statements are commonplace in the assessment process, and the fact that previous reductions were made is no guide to future reductions.
- the applicant contends that the costs that are to be reassessed pertaining to invoices from April 2020 had, on previous cost assessment, been reduced by 45.2 per cent and the applicant submits that on the upcoming reassessment he anticipates a greater reduction. The former is a fact I have already taken into account, effectively in (b) above, and the latter is mere speculation which I reject; and
- the applicant claims he is “reasonably well informed” regarding the assessment and application of scales of costs, and in addition he has “become rather familiar” with the solicitor and counsel who appear on behalf of the respondent such that he suggests his assessments of their work can be fairly relied upon. The applicant has no relevant experience for me the place any weight on his opinion. That is in contrast to Mr Delaney’s own experience which is relevant to the task at hand.
- [18]This case falls at the end of the spectrum of an extremely simple one as that terminology was used by Mullins J (as the President then was) in the ASIC case at [37].
- [19]I therefore propose to adopt the approach of von Doussa J in Beach Petroleum NL v Johnson (No 2):[6]
- “[6]In my opinion it is appropriate to be used in cases which are simple and in which there would be utility in the court cutting the Gordian knot of protracted fights about costs which is the hallmark of this particular piece of litigation…
- [7]In my opinion, it is appropriate that an amount of costs be fixed by the court so as to prevent yet further argument and delay in finalising this matter.”
- [20]The factors are overwhelmingly favour the exercise of the discretion to fix the costs under the costs order.
- [21]I fix the costs of this application in the amount of $11,500 which figure I settle upon because:
- the costs have been itemised with a sufficient degree of particularity;
- the sum claimed is about 61 per cent of the total of the fees in circumstances where the evidence suggests that about 65 per cent recovery is usual for a standard costs assessment;
- a copy of the client fee agreement is in evidence;
- invoices have been produced for both the solicitors’ fees and counsel’s fees;
- having read the material for the application, the time and work undertaken appear to me to be reasonable.
- [22]I order that the costs of the application filed 3 July 2024, and determined on 8 November 2024, be fixed in the sum of $11,500 and paid by the applicant to the respondent.
Footnotes
[1] Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc [2024] QSC 250.
[2] Australian Securities and Investments Commission v Atlantic 3–Financial (Aust) Pty Ltd (No 3) [2008] 2 Qd R 298.
[3] ASIC case at [16].
[4] Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc [2024] QSC 250 at [3] and [40] and the footnotes referred to therein.
[5] [2023] QSC 214 per Callaghan J at [55].
[6] (1995) 57 FCR 119.