PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS -
AGREEMENTS AS TO COSTS – whether the UCPR applies to the
assessment of
costs and the enforcement of costs orders made in the Court of Disputed Returns
Source
Original judgment source is linked above.
Catchwords
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS -AGREEMENTS AS TO COSTS – whether the UCPR applies to theassessment ofcosts and the enforcement of costs orders made in the Court of Disputed Returnsin respect of an unsuccessful challengeto a mayoral election under the LocalGovernment Electoral Act 2001 (Qld) – whether a general complaintabout a costs statement is sufficient to constitute a notice of objection underr 706PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS -AGREEMENTS AS TO COSTS – where the applicant seeks anorder under r 819(1)or r 800(1) staying an enforcement warrant proceeding and staying an enforcementhearing warrant and proceeding– where the applicant seeks a declarationthat an enforcement creditor is estopped from pursuing a costs assessment forhiscosts and that any process to pursue or enforce such costs is an abuse ofprocess – where the applicant seeks orders for the
production of documents
referred to in a costs statement that has been the subject of a costs assessment
and costs order –
where the applicant seeks alternatively that costs
statements, costs assessments, costs assessors’ certificates and money be
set aside in the interests of justice – where the applicant seeks the
remittal of the costs assessment process to a registrar
for assessment under
chapter 17A, division 3
Ajayi v R T Briscoe (Nigeria) Ltd [1964]
1 WLR 1326, cited.
Caltabiano v Electoral Commission of Queensland (No 1)
[2009] QCA 182
(2010) 1 Qd R 100, followed.
Electric Light & Power Supply
Corporation Ltd v Electricity Commission of New South Wales [1956] HCA 22
(1956) 94 CLR
554, cited.
Commonwealth v Verwayen (1990) 170 CLR 394,
cited.
Whitechurch (George) Ltd v Cavanagh [1901] UKLawRpAC 41
Local Government Electoral Act 2001 (Qld), s 100, s
136(1), s 148
Uniform Civil Procedure Rules 1999 (Qld), r 209(1)(c), r
209M(1), r 211(1)(c), r 371, r 705, r 706, r 708, r 709, r 710, r 722 r 749, r
800, r 819(1).
Judgment (106 paragraphs)
[1]
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - AGREEMENTS AS TO COSTS - whether the UCPR applies to the assessment of costs and the enforcement of costs orders made in the Court of Disputed Returns in respect of an unsuccessful challenge to a mayoral election under the Local Government Electoral Act 2001 (Qld) - whether a general complaint about a costs statement is sufficient to constitute a notice of objection under r 706
[2]
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - AGREEMENTS AS TO COSTS - where the applicant seeks an order under r 819(1) or r 800(1) staying an enforcement warrant proceeding and staying an enforcement hearing warrant and proceeding - where the applicant seeks a declaration that an enforcement creditor is estopped from pursuing a costs assessment for his costs and that any process to pursue or enforce such costs is an abuse of process - where the applicant seeks orders for the production of documents referred to in a costs statement that has been the subject of a costs assessment and costs order - where the applicant seeks alternatively that costs statements, costs assessments, costs assessors' certificates and money be set aside in the interests of justice - where the applicant seeks the remittal of the costs assessment process to a registrar for assessment under chapter 17A, division 3
Local Government Electoral Act 2001 (Qld), s 100, s 136(1), s 148
[14]
Uniform Civil Procedure Rules 1999 (Qld), r 209(1)(c), r 209M(1), r 211(1)(c), r 371, r 705, r 706, r 708, r 709, r 710, r 722 r 749, r 800, r 819(1).
[15]
G R Cooper, Crown Solicitor, for the first respondent
[16]
[1] This is a decision on two applications filed in this proceeding by the applicant, Donald James Innes. Mr Innes seeks various orders against the first respondent Electoral Commission of Queensland (ECQ) and the second respondent Mark Bryan Jamieson. Mr Innes seeks that relief under the Uniform Civil Procedure Rules 1999 (Qld) (UCPR),[1] and the inherent jurisdiction of the court. To place the applications in some context, it is necessary to set out some background matters.
[17]
[2] On 28 March 2020, ECQ conducted local government elections. On 17 April 2020, the Electoral Commissioner gave notice, under s 100 of the Local Government Electoral Act 2001 (Qld) (LGEA) that Mr Jamieson had been duly elected as mayor for the Sunshine Coast Regional Council. Mr Innes was an unsuccessful candidate for election as mayor.
[3] On 24 April 2020, Mr Innes filed an application (the CDR application) to the Court of Disputed Returns disputing the election of Mr Jamieson as mayor. Mr Innes made the CDR application under s 136(1) of the LGEA. This was the only way that Mr Innes could dispute Mr Jamieson's election.[2] He named the ECQ the first respondent to the CDR application and Mr Jamieson the second respondent.[3]
[4] In the CDR application, ECQ was represented by the Crown Solicitor and counsel instructed by him. Mr Jamieson was represented by Holding Redlich and counsel instructed by that firm.
[5] On 20 and 29 May, 6 June and 21 August 2020, Ryan J, sitting as the Court of Disputed Returns, heard the CDR application. At the conclusion of the hearing, her Honour reserved the matter to consider a decision.
[6] On 31 August 2020, Mr Innes filed an application to re-open the hearing of the CDR application (re-opening application). Mr Innes asked Ryan J to deal with the re-opening application without an oral hearing and on the basis of written material. ECQ and Mr Jamieson agreed to that course.
[7] On 22 September 2020, Ryan J, sitting as the Court of Disputed Returns, dismissed the re-opening application and ordered Mr Innes to pay ECQ's and Mr Jamieson's costs of the re-opening application.[4]
[8] On 24 September 2020, Ryan J, sitting as the Court of Disputed Returns, dismissed the CDR application. Her Honour made directions for Mr Innes to make any submissions about whether he should be ordered to pay the costs of ECQ and Mr Jamieson of the CDR application.[5]
[9] On 21 October 2020, Ryan J, sitting as the Court of Disputed Returns, ordered that Mr Innes pay the ECQ and Mr Jamieson's costs of, and incidental to, the CDR application on the standard basis. Her Honour also ordered that the deposit paid by Mr Innes to the Court be paid out of the Court in equal portions to ECQ and Mr Jamieson towards payment of the costs order.
[18]
[12] On 30 April 2021, Ms Tuite of Crown Law wrote to Mr Innes enclosing ECQ's costs statement (ECQ costs statement), which was dated 30 April 2021. Ms Tuite gave notice to Mr Innes that under r 706, if he wished to object to any items in the ECQ costs statement, he must serve a Notice of Objection within 21 days of service of the ECQ costs statement.[7]
[13] On 3 June 2021, ECQ filed an application (ECQ costs application). In it ECQ sought three specific orders.[8] First, an order under r 710 that ECQ's costs be assessed. Second, an order under r 708(1) appointing Leanne Francis as a costs assessor to assess ECQ's costs pursuant to the Ryan J costs orders. Third, an order that Mr Innes pay ECQ's costs of the ECQ costs application. The ECQ costs application was accompanied by an affidavit of Ms Tuite deposing that no objections to the ECQ costs statement in compliance with r 706 had been received.
[14] On 8 June 2021, an order was made that: pursuant to r 710 ECQ's costs be assessed pursuant to the Ryan J costs orders;[9] and an order was made pursuant to r 708(2) that Mrs Francis be appointed to conduct a default assessment of ECQ's costs at a specified hourly rate.[10]
[15] On 24 June 2021, a costs assessor's certificate by Mrs Francis (dated 16 June 2021) was filed (Francis certificate).
[16] On 2 July 2021, an order was made that Mr Innes pay ECQ's costs pursuant to the Ryan J costs orders and the Francis certificate, assessed at $31,189.70 (ECQ money order). Mr Innes was sent a copy of the ECQ money order on 6 July 2021.
[17] On 28 September 2021, the ECQ filed an application for an enforcement warrant and an order that Mr Innes pay ECQ's costs of the enforcement warrant application. This was accompanied by a supporting statement, affirmed by Ms Pulo of Crown Law to the effect that Mr Innes had not paid any of the ECQ money order, calculating the interest on the outstanding amount (at 6.1% per annum from 2 July 2021), and $467.40 professional fees of preparing the enforcement warrant, in accordance with Item 21 of the Schedule 1 scale of costs for the Supreme and District Courts in the UCPR (). It is convenient to refer to this application and the warrant that followed it as the .
[19]
[19] On 25 June 2021, an application was filed on behalf of Mr Jamieson (Jamieson costs application). It sought three specific orders.[11] First, an order under r 710(1A) that there be an assessment of Mr Jamieson's costs pursuant to the Ryan J costs orders. Second, an order under r 708(2) appointing Adam Bloom as a costs assessor to assess Mr Jamieson's costs in relation to the Ryan J costs orders. Third, an order that Mr Innes pay Mr Jamieson's costs of the Jamieson costs application. The Jamieson costs application was accompanied by an affidavit of Mr Quinn. In it, Mr Quinn deposed that on 10 May 2021 Mr Jamieson's solicitors had sent a costs statement to Mr Innes by email and by express post,[12] and that Mr Jamieson had not been served with a notice of objection to the Jamieson costs statement pursuant to r 706.
[20] On 29 June 2021, an order was made that: there be an assessment of the costs payable by Mr Innes to Mr Jamieson pursuant to the Ryan J costs orders;[13] and an order that Mr Bloom be appointed to conduct a default assessment of Mr Jamieson's costs at a specified hourly rate.[14]
[21] On 14 July 2021, a costs assessor's certificate by Mr Bloom (dated 8 July 2021) was filed (Bloom certificate).
[22] On 30 August 2021, an order was made that Mr Innes pay Mr Jamieson's costs pursuant to the Ryan J costs orders and the Bloom certificate, assessed at $37,926.83 (Jamieson money order).
[23] On 30 September 2021, the solicitors for Mr Jamieson wrote to Mr Innes. The letter enclosed a copy of the order of 30 August 2021. It was a written notice pursuant to r 807(1). It also enclosed a blank UCPR form 71, which Mr Jamieson required Mr Innes to complete and return within 14 days. A form 71 is a statement of financial position pursuant to r 807. Relevantly, rr 807(1) to (3) provide:
[20]
(1) At any time after a money order is made, an enforcement creditor may, by written notice, require an enforcement debtor to complete and return to the enforcement creditor a statement of financial position of an enforcement debtor in the approved form.
[21]
(2) The written notice must be given or sent by post to the enforcement debtor together with a blank statement of financial position.
[22]
(3) The enforcement debtor must complete and return the statement of financial position to the enforcement creditor within 14 days after receiving the statement."
[23]
[24] By the letter, Mr Jamieson's solicitors also warned Mr Innes that if he failed to complete the form 71 in a satisfactory way, failed to provide all the required information requested in the form 71 or failed to return the form 71 in the time required, then, without notice, Mr Jamieson would apply to the court to summons Mr Innes to appear at an enforcement hearing. The letter also warned Mr Innes that, if he failed to return the completed form 71, he may be liable to punishment for contempt of court. The letter recommended that Mr Innes seek independent legal advice.
[25] On 22 October 2021, an application was filed on behalf of Mr Jamieson. By it, he sought an enforcement hearing, an order that an enforcement summons be directed to Mr Innes, and an order that Mr Innes pay Mr Jamieson's costs of the application. This application was accompanied by a supporting statement, affirmed by Mr Boys of Holding Redlich, to the effect that Mr Innes had failed to complete and return the form 71 within 14 days or at all. Mr Boys also deposed that Mr Innes had not paid any of the Jamieson money order, calculating the interest on the outstanding amount (at 6.1% per annum from 30 August 2021). It is convenient to refer to this application and the steps (an order, a summons and warrants) that have followed it as the Jamieson enforcement proceeding.
[26] On 22 October 2021, the registrar signed an enforcement hearing summons.
[27] On 1 November 2021 (at 5:15 pm) Mr Innes was served with the enforcement hearing summons.
[28] On 18 November 2021, an order was made that an enforcement hearing warrant be issued for the arrest of Mr Innes.
[29] On 21 January 2022, the registrar issued an enforcement warrant - seizure and sale of property (Jamieson enforcement warrant). It was directed to Mr Innes as enforcement debtor in relation to the amount outstanding to Mr Jamieson as enforcement creditor pursuant to the Jamieson money order, plus interest and costs.
[30] On 7 February 2022, the registrar discharged the enforcement hearing summons and vacated the enforcement hearing warrant. The registrar also ordered that enforcement of the Jamieson money order be stayed until further order of the court.
[24]
[31] Mr Innes has filed two applications, one on 6 December 2021 (first Innes application), and the other on 16 December 2021 (second Innes application).
[32] On 7 December 2021, Martin J (as his Honour then was) ordered that the first Innes application be adjourned to a date to be fixed. In written reasons published that day, his Honour noted that Mr Innes had asked that the application proceed ex parte and "on the papers." His Honour concluded that no basis was established for the application to proceed ex parte. Following directions hearings, the first Innes application was set down for hearing in this court on 10 June 2022, together with the second Innes application.
[33] The second Innes application is a prolix document. At the hearing on 10 June 2022, Mr Innes confirmed that the following summary was an accurate statement of the relief he sought. It is based on a draft order Mr Innes attached to the second Innes application.
[34] In the second Innes Application, Mr Innes seeks an order, under r 819(1) or in the alternative r 800(1)(a) and (b), staying the ECQ enforcement proceeding. Mr Innes also seeks a declaration that Mr Jamieson is estopped from pursuing a cost assessment process by a costs assessor's certificate filed on 16 June 2021 and that "any process" by either ECQ or Mr Jamieson from 16 June 2021 is an abuse of process.
[35] Mr Innes also seeks an order, under r 209M(1) and r 211(1)(c), requiring ECQ or its solicitor to deliver up or produce "directly relevant matters" referred to in an item in Mr Jamieson's costs statement.
[36] Mr Innes also seeks three "further or alternative orders". Firstly, an order under r 371(2)(a), (b) and (c) settling aside the ECQ costs statement, Mrs Francis' costs assessment and the ECQ enforcement proceeding "as against" ECQ. Secondly, an order under r 371(2)(e) and r 709(1) setting aside the Francis certificate and the ECQ money order in the interests of justice. The third further or alternative order is an order remitting the costs assessment process to a registrar for assessment under UCPR chapter 17A, part 3, division 3, and setting the matter down for directions.
[37] At the hearing, Mr Innes told the court he sought essentially the same relief in the first Innes application, but in respect of the Jamieson enforcement proceeding, rather than the ECQ enforcement proceeding. This does not accord with the draft order attached to the first Innes application, which seemed to seek an interim stay of the Jamieson enforcement proceeding. However, no party objected to the court dealing with the first Innes application on the basis that Mr Innes sought the same relief in the first Innes application as in the second Innes application, but against Mr Jamieson.
[25]
Whether the UCPR applies to costs ordered to be paid by the Court of Disputed Returns
[26]
[38] Mr Innes submits that both the ECQ and the Jamieson enforcement proceedings should be stayed or set aside because each has been progressed under chapters 17A and 19 of the UCPR. Mr Innes submits that the provisions of the UCPR do not apply to the CDR application or the re-opening application. He says this is because each is a proceeding in the Court of Disputed Returns and not a civil proceeding in the Supreme Court. Mr Innes relies on the "persona designata doctrine." This distinguishes (on the one hand) a designated individual, vested with power and duties because of recognised attributes, who acts in a personal capacity detached from the court of which he or she is a member, from (on the other hand) any member of a court who may exercise a function because power and duties have been conferred on the court.[16]
[39] This line of argument was considered by the Court of Appeal in Caltabiano v Electoral Commission of Queensland (No 1).[17] The Supreme Court is the Court of Disputed Returns for the purposes of the LGEA,[18] as it is for the Electoral Act 1992 (Qld).[19] Unless "and except in so far as the contrary intention appears", when sitting as the Court of Disputed Returns, the Supreme Court is "exercising its known authority according to the rules of procedure by which it is governed and subject to the incidents by which it is affected."[20] An application to the Court of Disputed Returns is an originating process commencing a civil proceeding in the Supreme Court exercising a particular jurisdiction as the Court of Disputed Returns.[21]
[40] The rules in the UCPR apply to civil proceedings in the Supreme Court when sitting as the Court of Disputed Returns,[22] save to the extent there is any inconsistency between the UCPR and the relevant statutory provisions applying to the Court of Disputed Returns.[23] For Mr Innes' application, the relevant statutory provisions are in Part 7 of the LGEA. There is no inconsistency between the UCPR and of the LGEA that is relevant to the matters the subject of Mr Innes' two applications. There is no inconsistency between of the LGEA (within , on the one hand, and Chapter 17A and Chapter 19 of the UCPR, on the other. Both and the UCPR can apply to the CDR application and the steps consequential to the Ryan J costs orders made in the Court of Disputed Returns.
[27]
[45] Mr Innes seeks a stay or setting aside of each of the enforcement warrants under r 800(1)(a) and (b) or r 819(1) and a stay of each money order under r 800(1)(a).
[46] The two UCPR provisions are, relevantly, in these terms:
[28]
(1) A court may, on application by an enforcement debtor -
[29]
(a) stay the enforcement of all or part of a money order, including because of facts arising or discovered after the order was made; and
(b) make the orders it considers appropriate, including an order for payment by instalments.
[30]
(2) The application must be supported by an affidavit stating the facts relied on by the enforcement debtor."
[31]
(1) An enforcement debtor or another person affected by an enforcement warrant may apply to the court to set it aside or to stay enforcement at any time."
[32]
[47] Mr Innes is the enforcement debtor under the ECQ enforcement warrant. He may apply under either rule.
[48] The principal basis Mr Innes propounded for a stay of the ECQ money order was that it was obtained under provisions of the UCPR that did not apply to an order made in the Court of Disputed Returns. That basis was incorrect. It follows that, subject to some other contentions by Mr Innes dealt with below, there is no reason to stay the now satisfied ECQ money order.
[49] The ECQ enforcement warrant was issued for the sale of Mr Innes' property and was registered as a "writ" over the title to his real property. Mr Innes paid the amount of the ECQ money order before any sale of property occurred and the "writ" registered over the title has now been removed. The ECQ enforcement warrant has no further purpose to serve. It may be set aside under r 819(1) on that basis.
[33]
[50] The position is different in some respects for the Jamieson money order and the Jamieson enforcement warrant.
[51] Mr Innes has not paid anything towards the Jamieson money order. It remains wholly unsatisfied.
[52] At the hearing, Mr Innes informed the court that he sought no further stay order about the Jamieson enforcement warrant. This seemed to be because the registrar has stayed enforcement of the Jamieson money order until further order of the court. Mr Taylor submitted that once Mr Innes' application against Mr Jamieson was determined, the registrar's stay order should be vacated. It is convenient to deal with that matter after reaching a conclusion on the remaining issues raised by Mr Innes.
[53] The Jamieson money order was made on 30 August 2021. Mr Innes did not identify anything that happened or was discovered after that date as a basis to stay or set it aside. Mr Innes did refer to the delay of 30 days, between 30 August, when the order was made, and 30 September 2021, when he was served with it. I reject that as a basis to stay or set aside the Jamieson money order. The other submissions by Mr Innes (about the money orders being made pursuant to the UCPR provisions) have been dealt with above.
[54] In reviewing the material for the hearing, Mr Jamieson's legal advisers identified a mathematical error in the sum the subject of the Jamieson money order. Mr Bloom had disallowed an item of $32.45 and an outlay of $1.00, but these amounts were not included in the total of disallowed amounts to be deducted. It follows that the Bloom certificate and the Jamieson money order include an amount of $33.45 more than the total amount Mr Bloom allowed in his assessment. On this basis, the certificate and the order overstate Mr Jamieson's costs entitlement by less than 0.09%. I regard this difference as inconsequential. Mr Innes did not identify the error and made no submission about it. I decline to make an order setting aside the Bloom certificate or the Jamieson money order on this basis. To do otherwise would be contrary to the purpose of facilitating the just and expeditious resolution of the real issues in this proceeding at a minimum of expense.
[55] Mr Taylor, for Mr Jamieson, conceded that there was an error in the Jamieson enforcement warrant. It overstated the sum payable by Mr Innes to Mr Jamieson by $200. This was because those drafting the Jamieson enforcement warrant had failed to consider the $200 paid to Mr Jamieson by the registrar from the security deposit Mr Innes had lodged with the court when he commenced the CDR application. Mr Taylor submitted this $200 overstatement was sufficient to justify setting aside the enforcement warrant. This concession by the enforcement creditor seems an appropriate basis to set aside the warrant under r 819(1).
[34]
[57] Each of ECQ and Mr Jamieson, as a party entitled to paid costs, was obliged to serve "a costs statement in the approved form" on Mr Innes.[30] The approved form is form 60A. Each of the costs statements is in evidence. I am satisfied that each is in the approved form.
[58] There are further requirements in r 705(2):
[35]
(a) contain sufficient details to enable the party liable to pay the costs to understand the basis for the costs, prepare an objection to the costs statement and obtain advice about an offer to settle the costs; and
(b) if practicable, have attached to it copies of all invoices for the disbursements claimed in the costs statement."
[36]
[59] Mr Innes contends that the ECQ costs statement and the Jamieson costs statement failed to comply with r 705(2)(a).
[60] I have examined each of the two costs statements. Each of them lists in chronological order the items of costs claimed, noting the date, assigning a sequential item number. Each has a description for each item and the sum claimed as the costs for it (which are divided between disbursements and professional fees). Each has a cumulative sub-total at the bottom of each page. At the end of each costs statement, there is a total of outlays and a (grand) total of outlays and professional fees.
[61] Mr Innes is not a lawyer. He acted for himself in the CDR application. He prepared, filed and served various documents on ECQ and Mr Jamieson. He was served with documents that each of those other parties relied upon. He appeared at each hearing day. So, he has personal knowledge of the progress of the CDR application, the documents filed, served and read and the appearances.
[62] Considering the knowledge of Mr Innes of the CDR application and the circumstances of it more generally, I am satisfied that each of the two costs statements is sufficient to enable a person in the position of Mr Innes to understand the basis for the costs stated in each item, to prepare an objection to it, and to obtain advice about any offer to settle the costs by either ECQ or Mr Jamieson, or by both of them.[31]
[63] Mr Innes fails in his challenge to the money orders and the enforcement warrants, on the basis of alleged inadequate form of the costs statements.
[37]
[64] Mr Innes contends that he served an objection to each costs statement in accordance with r 706. That rule provides:
[38]
(1) A party on whom a costs statement is served may, within 21 days after being served, object to any item in the statement by serving a notice of objection on the party serving the statement.
[39]
(a) number each objection; and
(b) give the number of each item in the costs statement to which the party objects; and
(c) 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.
[40]
(3) The reasons for objection may be in abbreviated note form but must be understandable without further explanation.
[41]
(4) If the same objection applies to consecutive or nearly consecutive items in a costs statement, the notice need not separately state the reasons for objecting to each of the items.
[42]
(5) Also, if there are a number of associated items, the objection may be in the form of an objection to a common issue related to the associated items."
[43]
[65] Mr Innes was served with the ECQ costs statement on 30 April 2021, and a hard copy was received by him on 5 May 2021. He was served with the Jamieson costs statement on 10 May 2021.
[66] The particulars of costs in the ECQ costs statement identify that the costs statement has been prepared based on the "Supreme Court Scale of Costs effective 24 August 2019". The amounts claimed for the items appear, on a cursory review, to be the amounts provided for in the UCPR scale. From his submissions at the hearing, it was apparent that Mr Innes had understood the ECQ costs statement in this way.
[67] The Jamieson costs statement identifies that it is Mr Jamieson's "Standard costs" against Mr Innes pursuant to the Ryan J costs orders. Like the ECQ costs statement, on a cursory review, the amounts claimed for items appear to be the amounts provided for in the UCPR scale. From his submissions at the hearing, it was also apparent that Mr Innes had understood the Jamieson costs statement to claim costs on the UCPR scale.
[68] On 26 May 2021, Mr Innes sent an email to Ms Tuite of Crown Law for ECQ and Mr Quinn of Holding Redlich for Mr Jamieson.
[69] In his email, Mr Innes made general complaints about the form of the costs statements asserting they were not in the approved form. I have dealt with these contentions above. They are without any proper basis. To a person reading them and looking at either of the costs statements, the general complaints would make no sense.
[70] Mr Innes made the following statements in the 26 May 2021 email:
[44]
"I forewarn that I will seek 'orders otherwise' than 716(2)(a).[32]
[45]
I have previously offered to [Mr Jamieson] that the costs statement could be withdrawn, that I would consent on agreed terms - That offer remains open until 2nd June 2021.
[46]
Crown Law has today to also consider the offer of my consent to withdrawal on agreed terms.
[47]
I would require a positive indication before COB, the rest can be sorted out directly as there is obviously NO TIME IMPERATIVE.
[48]
If BOTH fail to take that perfectly reasonable and proper step then I will proceed to apply to have 'sufficient details' &/or an order that both parties file another costs statement which properly meets Reg 705 as required by law.
[49]
I also welcome the opportunity to 'prepare an objection' & 'obtain advice' - upon receipt of a proper costs statement with 'sufficient details' 'to enable' me 'to understand the basis for the costs' sought."
[50]
[71] In the email itself, Mr Innes did not characterise it as a notice of objection. On the contrary, he foreshadowed other applications to challenge the costs statements. Mr Innes advised he would prepare an objection only upon receipt of costs statements that met his view of the requirements for costs orders made in the Court of Disputed Returns.
[72] In his email, Mr Innes put his opinion that the UCPR did not apply to the CDR application and the costs he was ordered to pay could not be assessed on the UCPR scale because the Court of Disputed Returns is not the Supreme Court. I have dealt with those contentions above.
[73] The other matters in his email that should be considered to identify any "notice of objections" are the following statements:
[51]
"The purported "costs statements" DO NOT contain ANY DETAILS WHATSOEVER regarding the alleged? Basis for departing from the ordinary rules regarding scale.
[52]
Indeed [Mr Jamieson's] fails to even identify a scale at all.
[53]
Nothing in the Act sets scale, and nothing provides for a departure from the ordinary venue rules regarding $ quantum & scale.
[54]
I welcome your confirmation, urgently, of "the Rules of court of the Supreme Court" (UCPR) which provide for the practices and procedures taken as regards costs & scale that divert from the norm."
[55]
[74] These statements appear in four paragraphs within a 24-paragraph email that canvasses many other matters, some intelligible, others not. The references to "the ordinary rules regarding scale", "the ordinary venue rules", and "the norm" are unintelligible in their immediate context. There was a failure on the part of Mr Innes to "state the reasons" he objected to any items in either costs statement, as required by r 706(2). Elsewhere in the email, Mr Innes sets out his (erroneous) view that "the Supreme Court is merely the venue for the Court of Disputed Returns" and that the provisions of the UCPR, including the UCPR scale, do not apply to the CDR application or the Ryan J costs orders. In the context of the written and oral submissions advanced by Mr Innes at the hearing of his two applications, I have attempted to understand the statements by Mr Innes about "the ordinary rules regarding scale", the "ordinary venue rules" and the "norm." As best he may be understood, Mr Innes seems to contend that the only basis on which costs ordered by the Court of Disputed Returns may be assessed is as "the reasonable costs", being the expression used in s 148(1) of the LGEA.[33]
[75] An assessment of the reasonable costs of the other parties would be an assessment on the indemnity basis.[34] The amount of any costs assessed on the standard basis would certainly be recoverable on the indemnity basis. Additional costs reasonably incurred and of a reasonable amount, having regard to the UCPR scale, any costs agreement, and charges ordinarily payable by a client to a solicitor for the work, could be recovered on the higher basis of assessment. An objection to a costs statement on the ground that it had been prepared on the standard basis rather than the indemnity basis does not raise any issue of law or fact on which an objector could contend a costs assessor should decide in favour of the objector. Even if ECQ or Mr Jamieson could have discovered what Mr Innes meant or intended by his email, he would not have satisfied r 706(2)(c). The email would still not be understandable without further explanation. Even considered as objections in "abbreviated note form", they do not satisfy r 706(3).
[76] The process prescribed by r 705 and r 706 may be understood in the context of r 708, r 709(2)(b), r 722, 737A and r 742(5)(b). For the process to have utility, an objector must comply with r 706, in particular (2) to (5). A notice of objection is how items in a costs statement are identified as requiring a degree of scrutiny and how the matters to be resolved in the assessment of those identified items are delimited. For all items not the subject of a notice of objection, the assessor must "assess the costs without considering each item and by allowing the costs claimed in the costs statement", subject to "correcting an obvious error in the costs statement." It has been the position, since long before the UCPR, that objections should be carefully framed because it is to them alone that the costs assessor directs their attention.
[56]
[82] Mr Innes seeks a declaration that Mr Jamieson is estopped from pursuing a cost assessment process against him by the Francis certificate. He says the estoppel operates from 16 June 2021, when the certificate was filed. This is because in completing the certificate, in error, Mrs Francis referred to the costs of "the First and Second Respondents" rather than those of "the First Respondent".
[83] The subject matter of the estoppel asserted is the right of Mr Jamieson to enforce the Ryan J costs orders made in his favour. It appears Mr Innes is asserting an equitable estoppel, because the subject matter is a legal right and not a fact.
[84] The first condition for an equitable estoppel is that there was an express or implied representation by Mr Jamieson that he would not rely on his legal right in the material respect.[40] Mr Jamieson's representation must have been sufficiently clear that it could have been understood by Mr Innes to be of that effect,[41] or it must have been intended by Mr Jamieson to be so understood.
[85] The second condition is that Mr Innes must have altered his position in reliance on the representation.[42]
[86] The third is that it must appear that it would be inequitable for Mr Jamieson to be permitted to resile from his representation, in whole or in part or without the imposition of conditions.[43]
[87] An alternative approach is to consider whether Mr Innes assumed Mr Jamieson would not enforce his legal rights; whether Mr Jamieson induced that assumption; whether Mr Innes acted in reliance on that assumption; whether Mr Jamieson knew or intended Mr Innes to act in that way; and whether Mr Jamieson failed to act to avoid that outcome.[44]
[88] A key consideration in an assertion of equitable estoppel is whether the party asserting it can be restored to their former position and whether significant prejudice will be suffered by the party.[45] If Mr Jamieson made a representation or induced Mr Innes to adopt an assumption, then the court must consider whether it is just that Mr Jamieson be allowed to depart from his representation or the assumed state of affairs. The resolution of that issue largely depends on Mr Jamieson's conduct and that of Mr Innes, consideration of any hardship that might arise, and any other matter that bears on the balance of justice.
[57]
[97] Mr Innes seeks an order pursuant to r 209(1)(c) and r 211(1)(c) that ECQ deliver up or produce an email referred to in item 682 of the Jamieson costs statement. The email is one from a junior counsel referred to in an email from Crown Law. It is described as "requesting that we provide to him a copy of the Joint Bundle of Authorities with the Barristers who are representing the parties."
[98] The UCPR provisions on which Mr Innes relies are in these terms:
[58]
(1) This part applies to the following types of proceeding -
[59]
(c) if the court directs - a proceeding started by application."
[60]
(1) A party to a proceeding has a duty to disclose to each other party each document -
[61]
(c) if there are no pleadings - directly relevant to a matter in issue in the proceeding."
[62]
[99] The "part" applied by r 209(1) is part 2 of chapter 7 of the UCPR. That part of the UCPR applies to a proceeding started by claim, to a proceeding the court has ordered "to continue as if started by claim",[48] to another proceeding if the court has directed that the part is to apply.
[100] The CDR application was started by the CDR application. It was not started by claim. The court has not ordered that the CDR application continue as if it had been started by claim. Nor has the court made any direction that part 2 of chapter 7 is to apply to it.
[101] In Waratah Coal Pty Ltd v Nicholls & Anor, Applegarth J explained the position with a proceeding not started by a claim:
[63]
"There is no entitlement to disclosure in an application of the present kind. But specific disclosure will be ordered in an appropriate case if to do so is in the interests of justice and if it facilitates the just and expeditious resolution of the real issues in the proceedings at a minimum of expense. If a case is made out for disclosure, then a suitably-tailored order usually should be made, rather than simply expect disclosure to be made in accordance with Part 1 of Chapter 7. One reason is that in a proceeding where there are no pleadings there may be scope for unnecessary disputes and misunderstandings about whether a document is 'directly relevant to a matter in issue in the proceeding.' Another is that in any case in which disclosure is ordered, its scope should be defined and not be excessively wide."[49]
[64]
[102] The court will usually order specific disclosure in appropriate cases where it is in the interests of justice or to facilitate the just and expeditious resolution of the real issues in the proceeding.
[103] At item 682 of the Jamieson costs statement, Mr Jamieson claimed $21.60 for perusing the email from Crown Law. This is the sum in item 17(2)(b)(i) of the UCPR scale for perusing correspondence received up to 100 words. For perusing the enclosed email from the junior counsel, Mr Jamieson claimed an amount of $5.40 at item 684 of the Jamieson costs statement. This is slightly less than the $5.45 sum per page in item 17(2)(c) of the UCPR scale for examining correspondence received "if perusing the document is not reasonably necessary".
[104] It follows that Mr Innes has asked the court to order ECQ and Mr Jamieson to produce a document that relates to a claim for between $5.40 and $26.00 in a costs statement assessed at $37,926.83.
[105] The Jamieson costs statement has been assessed by Mr Bloom, who was appointed by the court. His costs assessor's certificate has been filed. The Jamieson money order has been made by the court pursuant to it and the Ryan J costs orders. For the reasons set out above, I have refused Mr Innes' application to set aside or stay the Jamieson money order. The matter of the costs payable to Mr Jamieson by Mr Innes pursuant to the Ryan J costs orders has been determined. There are no matters in issue in the proceeding about the amount of those costs. There does not appear to be any matter in issue in the proceeding to which the email could be directly relevant.
[106] Mr Innes made no objection to item 682 or 684. Nor has any contention he advanced persuaded me that the allowance of a sum for ECQ's costs that included the amounts for these two items could be wrong in principle or otherwise in error.
[107] In the circumstances, I am not persuaded that it is in the interests of justice to order the production of the email. Nor am I satisfied that an order for production would facilitate the just and expeditious resolution of the real issues in the proceeding.
[65]
Costs of the two applications filed by Mr Innes
[66]
[108] Mr Innes submitted that, as he was representing himself, he had no legal costs. Should he succeed in his applications, he submitted that there should be no order as to costs. He contended for the same order, should he fail and ECQ and Mr Jamieson succeed in opposing the orders he was seeking.
[109] Mr Favell for ECQ submitted that costs should follow the event. Mr Taylor for Mr Jamieson concurred with Mr Favell's submission on costs.
[110] It is clear from the above reasons that Mr Innes has substantially failed to obtain the relief he sought in each of his applications. ECQ and Mr Jamieson have substantially succeeded. Orders are to be made setting aside the enforcement warrants. That relief was conceded by ECQ and Mr Jamieson. In the case of ECQ, it was conceded because Mr Innes has satisfied the ECQ money order since the warrant was issued. In the case of Mr Jamieson, it was conceded because he identified a mathematical error in the amount claimed.
[111] In the circumstances, Mr Innes should pay the costs of ECQ and of Mr Jamieson of the two applications he filed that were heard on 10 June 2022.
[67]
[112] On 27 January 2022, an application (Jamieson application) was filed on behalf of Mr Jamieson. By it, Mr Jamieson seeks an order that Mr Innes pay Mr Jamieson's costs of the Jamieson enforcement proceedings. Directions were made to facilitate a hearing of the Jamieson application on the same day as the first and second Innes applications. At the commencement of the hearing, it was agreed between the parties that the court would deal with the applications filed by Mr Innes first, and then turn to the Jamieson application.
[113] Mr Innes required each of the three ECQ witnesses for cross-examination on the hearing date. He questioned each of them at some length, commencing with Ms Pulo at about 10.45 am and concluding with Ms Tuite at about 4:07 pm. Mr Innes made oral submissions on his applications from about 4:15 pm to 4:58 pm. Mr Favell and Mr Taylor made their oral submissions between about 5:00 pm and 5:15 pm. Mr Innes then replied until about 5:23 pm. By then, there was not sufficient time remaining in which to hear the parties on the Jamieson application. By consent, it was adjourned to a date to be fixed.
[68]
[114] For the reasons set out above, the court should make orders setting aside the ECQ enforcement warrant and the Jamieson enforcement warrant. Each of the applications brought by Mr Innes should be otherwise dismissed. It is appropriate for the stay of enforcement of the Jamieson money order to be vacated.
[115] Mr Innes should be ordered to pay the costs of ECQ and Mr Jamieson of and incidental to the two applications filed by Mr Innes.
[69]
[1] In these reasons, a reference to a rule or rules (e.g. r 371) is a reference to a rule or rules in the UCPR.
[70]
[3] At some point, the Attorney-General for the State of Queensland was permitted to intervene in the CDR application. The Attorney-General has no role in these two applications.
[71]
[4]Innes v Electoral Commission of Queensland & Anor (No 1)[2020] QSC 273. Her Honour's order was filed on 30 October 2020.
[72]
[5]Innes v Electoral Commission of Queensland & Anor (No 2) [2020]QSC 293.
[73]
[6]Innes v Electoral Commission of Queensland & Anor (No 3)[2020] QSC 320. Her Honour's order was filed on 30 October 2020.
[74]
[7] There is evidence before the court that this communication was delivered by Australia Post to Mr Innes' address on 5 May 2021.
[75]
[8] The ECQ costs application also gave notice ECQ was seeking "Such other orders as the court considers necessary."
[76]
[9] This order was made by the registrar pursuant to r 710.
[77]
[10] This order was made by the registrar pursuant to r 708(2).
[78]
[11] The Jamieson costs application also gave notice Mr Jamieson was seeking "Such other orders as the court considers necessary."
[79]
[12] There is evidence in the form of Mr Quinn's affidavit and its exhibits that the Jamieson costs statement was delivered to Mr Innes' address on 11 May 2021.
[80]
[13] This order was made by the registrar pursuant to r 710(1A).
[81]
[14] This order was made by the registrar pursuant to r 708(2).
[82]
[15] There are some matters that were obviously common to the two applications. In the first Innes application, Mr Innes asserted "that there exists an estoppel grounded in a prior binding costs assessment certificate which has NOT been brought to the Court by [Mr Jamieson] despite written claims implying invalidity." He also sought an order for the production of some documents.
[20]Electric Light & Power Supply Corporation Ltd v Electricity Commission of NSW[1956] HCA 22; (1956) 94 CLR 554, 559, cited in Caltabiano (No 1), 110-112 [14] (Muir JA). See also Skyring v Electoral Commission of Queensland[2002] 1 Qd R 442, [14] (Chesterman J), identifying the similarity with the Commonwealth legislation in the decision of the High Court in Sue v. Hill[1999] HCA 30; (1999) 199 CLR 462, 480-481 (Gleeson CJ, Gummow and Hayne JJ), 519-520 (Gaudron J).
[88]
[21] Caltabiano (No 1), 124 [76]-[79] (Fraser JA).
[89]
[23] Where there is any inconsistency, the LGEA applies and the inconsistent provision in the UCPR does not apply.
[90]
[26] At one time Mr Favell apprehended that Mr Innes was contending that the Ryan J costs order did not entitle ECQ and Mr Jamieson to recover their respective costs independently of each other. No such contention was put by Mr Innes at the hearing.
[91]
[31]Ginn v Ginn; ex parte Absolute Law Lawyers & Attorneys[2015] QSC 49, [33] (Henry J).
[92]
[32] Mr Innes' reference to r 716(2)(a) remains obscure. That provision authorises a costs assessor to seek directions from the court if a party does not participate in the costs assessment in accordance with the procedure decided by the costs assessor.
[93]
[33] In the context of the email, the reference to "the Act" seems to be to the LGEA.
[48] Under r 14, which the court may do "if the court considers a proceeding started by application should have been started by claim or may more conveniently continue as if started by claim."
[106]
[49][2013] QSC 68, [133], citing r 211(1)(c), and Central Queensland Mining Supplies Pty Ltd v Columbia Steel Casting Co Ltd[2011] QSC 183.
Parties
Applicant/Plaintiff:
Innes
Respondent/Defendant:
The Electoral Commission of Queensland & Ors [2022] QSC 122
[10] There was no appeal from the order of 22 September 2020 or the order of 21 October 2020, including her Honour's costs about costs (Ryan Jcosts orders). The Ryan J costs orders were in the usual form. ECQ and Mr Jamieson had distinct interest in the CDR application and were separately represented. Her Honour's reasons made it clear that, by the Ryan J costs orders, each of ECQ and Mr Jamieson was entitled to their separate costs in the CDR application and the re-opening application.
[11] During the period between the making of the Ryan J costs orders and April 2021, the parties exchanged communications about the amount each of ECQ and Mr Jamieson was prepared to accept from Mr Innes to resolve their respective entitlements to recover costs under the Ryan J costs orders. The parties did not reach any binding agreement.
UCPR scale
ECQ enforcement proceeding
[18] On 29 September 2021, the registrar issued an enforcement warrant - seizure and sale of property (ECQ enforcement warrant). It was directed to Mr Innes as enforcement debtor in relation to the amount outstanding to ECQ as enforcement creditor pursuant to the ECQ money order, plus interest and costs.
[41] In any event, Chapter 17A of the UCPR applies to costs payable or to be assessed under an Act.[24] Chapter 17A, part 2, division 2 applies to costs in a proceeding that under an Act are to be paid to a party to the proceeding by another party.[25] The costs payable by Mr Innes to ECQ and Mr Jamieson pursuant to the two costs orders are costs payable by him under orders made under the LGEA.
[42] By the Ryan J costs orders, the Court of Disputed Returns ordered that Mr Innes pay the costs of ECQ and Mr Jamieson on the standard basis.[26] They are to be assessed on the standard basis.[27] This means each of ECQ and Mr Jamieson is entitled to all costs necessary or proper for the attainment of justice or for enforcing or defending their rights.[28]
[43] In the absence of agreement with Mr Innes, the amount of their respective costs is determined by an assessment under Chapter 17A, parts 2 and 3, of the UCPR. A money order made under r 749 in Chapter 17A may be enforced under Chapter 19.[29]
[44] Each of ECQ and Mr Jamieson was correct in seeking to have their respective costs assessed in accordance with Chapter 17A, part 3. Once each had obtained a money order for the payment of their respective costs, if it was not paid by Mr Innes, then each was entitled to seek to enforce their money order against Mr Innes under Chapter 19. Mr Innes' challenge on that basis to the ECQ enforcement proceeding and the Jamieson enforcement proceeding fails.
[56] There are three further contentions raised by Mr Innes that may be relevant to whether the two money orders should be stayed or set aside. The first is that ECQ and Mr Jamieson were not entitled to proceed with a default costs assessment of their costs the subject of the Ryan J costs orders because of defects in the form of their respective costs statements. The second is a contention that Mr Innes objected to each of the costs statements in accordance with r 706. The third further contention applies only to the Jamieson money order. It is the contention that Mr Jamieson is estopped from claiming any costs from Mr Innes, following the filing of the Francis certificate on 16 June 2021. It is convenient to consider these three further contentions next, and in that order.
[77] The requirement for a notice of objection, and the entitlement to a default assessment in the absence of one follows the philosophy of the UCPR, facilitating the resolution of the real issues with a minimum of expense and without undue delay.
[78] This part of Mr Innes' challenge to the default costs assessment fails because he failed to serve an objection to the costs statements in accordance with r 706. The email he relied on did not include a statement of intelligible reasons for objection, identify any issue of law or fact on which a costs assessor could make an order in his favour, or provide reasons for objection that were understandable without further explanation.
[79] In his applications, or even at the hearing, Mr Innes could have applied under r 709 to set aside or vary a decision of Mrs Francis or Mr Bloom.[37] To do so, Mr Innes would have had to exhibit to an affidavit a notice of objection in accordance with rr 706(2) to (5).[38] He did not do so. More than 12 months after he was served with the costs statements, he was unable or unwilling to state the reasons for an objection to any item in either costs statement, identify any issue of law or fact he contends should be considered by a costs assessor to make a decision in his favour. He remains unable to state such reasons in a way that can be understood without further explanation.
[80] Mr Innes was unable to identify any item allowed by the costs assessor in the default assessment of either costs statement that ought not to have been allowed. There is no evidence that Mr Innes has suffered any injustice as a result of ECQ and Mr Jamieson pursuing their respective legal rights.
[81] If Mr Innes had produced notices of objection at or before the hearing, he would also have had to explain his failure to file the notices within time and explain the delay between him receiving each of the costs statements and producing notices of objection.[39] The delay was over a period in which the costs assessor's certificates were filed, the money orders were made, and enforcement proceedings were initiated. He was aware that each of these steps had or was occurring. Mr Innes showed no good reason why the default assessments should be set aside.
[89] On 10 May 2021, when the solicitors for Mr Jamieson served the Jamieson costs statement, it would have been apparent to Mr Innes that Mr Jamieson was intending to enforce his legal rights under the Ryan J costs orders. Mr Innes had received the ECQ costs statement, as he put it in his email, a few days earlier. It would have been apparent to Mr Innes that Mr Jamieson was asserting rights quite separate to those of ECQ.
[90] The solicitor for ECQ served the Francis certificate on Mr Innes on about 16 June 2021. It is this document that Mr Innes relies on to advance his estoppel defence. It purported to assess the costs of both ECQ and Mr Jamieson. Mrs Francis readily identified the error. It appears to have been the result of her copying the language in the Ryan J costs orders. A copy of the ECQ money order was sent to Mr Innes on 6 July 2021. It made clear that ECQ had obtained an order that Mr Innes pay the sum assessed by Mrs Francis as ECQ's costs pursuant to the Ryan J costs orders.[46] This should have cured any possible misunderstanding that might have arisen from the service and filing of the Francis certificate.
[91] By 30 September 2021, when Mr Innes was served with the Jamieson money order, it was plain that Mr Jamieson was asserting his legal rights.
[92] Having considered the evidence, I am not persuaded that Mr Jamieson made any representation to Mr Innes that he would not pursue his legal rights to recover any amount due to him under the Ryan J costs orders. Nor am I persuaded that Mr Jamieson did anything (or omitted to do anything) that induced Mr Innes to make such an assumption. There is no evidence from which it could reasonably be inferred that Mr Jamieson knew or intended Mr Innes to make such an assumption.
[93] There is no contemporaneous evidence that, at any time before 30 September 2021, Mr Innes assumed that Mr Jamieson would not enforce his legal rights. There is no evidence that Mr Innes altered his position in reliance on the alleged representation or assumption.
[94] In the circumstances, I am not persuaded that it would be inequitable to permit Mr Jamieson to assert his legal rights arising from the Ryan J costs orders.
[95] It follows that Mr Jamieson is not estopped from enforcing his legal rights on the basis asserted by Mr Innes. No declaration should be made to the contrary.
[96] There remains the clerical mistake or error in the Francis certificate that resulted from an accidental slip by Mrs Francis. Mrs Francis has signed a certificate. She is functus officio and no longer has power to modify her costs assessment.[47] It should be corrected, pursuant to r 388. In each of paragraphs 3 and 5 of the Francis certificate, the words "the First and Second Respondents" should be replaced with "the First Respondent".