McCoombes v Curragh Queensland Mining Ltd [2001] QCA 379

SUPREME COURT OF QUEENSLAND

CITATION: McCoombes v Curragh Qld Mining Ltd [2001] QCA 379

PARTIES: MALCOLM ADRIAN McCOOMBES / (plaintiff/applicant) / v / CURRAGH QUEENSLAND MINING LIMITED / ACN 010 186 704 / (defendant/respondent)

FILE NO/S: Appeal No 7189 of 2001 / DC No 59 of 1995

DIVISION: Court of Appeal

PROCEEDING: Application for leave s 118 DCA (civil)

ORIGINATING COURT: District Court at Brisbane

DELIVERED ON: 14 September 2001

DELIVERED AT: Brisbane

HEARING DATE: 24 August 2001

JUDGES: McMurdo P, Davies JA and Holmes J / Judgment of the Court

ORDER: Application for leave to appeal refused with costs to be assessed

CATCHWORDS: DAMAGES - GENERAL PRINCIPLES - RECOVERY OF COSTS - where action for damages commenced in the Supreme Court - where action transferred to the District Court without costs order - where District Court ordered the defendant pay the plaintiff's costs taxed on the District Court Scale - where defendant made offer to settle - where offer rejected - where costs assessment by registrar -where defendant objects to all costs incurred prior to remittal - where registrar unwilling to make order for costs incurred prior to remittal - where orders sought in the Supreme Court - where appeal to District Court from registrar's final assessment of costs - where leave sought to appeal from District Court Judge's review of registrar's assessment. / PROCEDURE - SUPREME COURT PROCEDURE - QUEENSLAND - PRACTICE UNDER RULES OF COURT - REGISTRY AND REGISTRA'S - where registrar had the power to assess costs incurred prior to remittal under s 77(6)(b)(i) District Court Act 1967 (Qld) / PROCEDURE - COSTS - SCALE OF COSTS - where question as to interpretation of the District Court Scale Item 27 - where the approach taken by the District Court Judge does not warrant the granting of leave to appeal / INTERPRETATION - GENERAL RULES - whether the offer to settle under UCPR r 721(2)(b) requires the offer to 'be for all of the person's liability for costs to the party to whom it is made' - where the District Court Judge was correct in considering the offer to settle was an offer under UCPR r 721 / District Court Act 1967 (Qld), s 77(6), s 77(6)(b), s 118(3) / Uniform Civil Procedure Rules r 2, r 686, r 686(1), r 686(2)(a), r 686(3), r 690(5), r 690(6), r 706, r 709, r 710, r 717, r 721, r 721(2)(b), r 721(3)(c), r 722(4), r 742 / Boral Resources (Queensland ) Pty Ltd v Trim, Londy & Sutton, Appeal No 23 of 1993, 2 December 1996 / House v The King (1936) 55 CLR 499, referred to

COUNSEL: R V Hanson QC, with S P Gray for the applicant / G J Robinson for the respondent

SOLICITORS: Rees R & Sydney Jones (Rockhampton) for the applicant / Bain Gasteen for the respondent

THE COURT: This is an application for leave to appeal under s 118(3) District Court Act 1967 (Qld) from a District Court judge's review¹of a Deputy Registrar's assessment of costs.

It will be convenient if we refer to the applicant as the plaintiff and the respondent as the defendant.

The action for damages for personal injuries suffered in the workplace the subject of the costs assessment was commenced in the Supreme Court in 1993. It was transferred to the District Court in 1995 without any costs order being made.

On 7 July 1999, Senior Judge Trafford-Walker ordered that the action be adjourned to the settlement list and that the defendant pay the plaintiff's costs of and incidental to the action to be taxed on the District Court Scale where the amount recovered exceeds $50,000. The plaintiff filed both an application for costs assessment²and a costs statement³on 1 December 1999. The 210 page costs statement included 1,432 items and claimed professional costs and outlays totalling $40,652.25.

On 3 February 2000, the defendant made an offer under UCPR r 721 "to settle the costs payable under the Order/Judgment of Senior Judge Trafford-Walker made the 7th day of July 1999 wherein it was ordered that the Defendant pay the Plaintiff's party and party costs and outlays in respect of the action, by payment of the sum of $30,000".

The defendant took a general objection to the plaintiff's manner of claiming for perusals and photocopying counsel's brief and raised a further 640 specific objections.⁴At the commencement of the assessment on 7 March 2000, the defendant for the first time objected to all costs prior to the matter being remitted to the District Court as no order had been made in the Supreme Court to deal with these costs.

The Deputy Registrar indicated she would not make any order as to the first 511 items in the assessment which were incurred prior to remittal. The plaintiff was then forced to seek an order for the costs of these items on the higher District Court Scale from Mullins J in the Supreme Court before the completion of the assessment before the Deputy Registrar in the District Court. The plaintiff obtained that order on 3 April 2000 with costs in his favour.

Prior to 1 March 2000 s 77(6) District Court Act 1967 (Qld) provided for "a Supreme Court or judge thereof" to make an order as to costs incurred before remittal of an action from the Supreme Court to the District Court.⁵An amendment to that section which removed reference to "the Supreme Court or a judge thereof" came into force on 1 March 2000 so that s 77(6) now relevantly provides:

"(6)The costs of the parties in respect of proceedings remitted to a District Court …

…

incurred before the order –

in the case of proceedings referred to in sub-section (1)(a), must be assessed on the basis the proceedings had been started in the Supreme Court if the Supreme Court orders, or, in the absence of an order, as if the proceedings had been started in the District Court."

UCPR r 686⁶relevantly provides:

"(1)This rule applies if a proceeding is removed to the court from another court or tribunal (the 'first court').

(2)In relation to the proceeding –

if the first court has not made an order for costs – the court may make an order for the costs of the proceeding, including the costs before the removal; and

any order for costs made by the first court may be assessed and enforced as if it were an order of the court.

(3)Unless the first court otherwise orders, the costs up to the time of the removal must be assessed on the scale applying in the court."

The Deputy Registrar had power to assess the costs incurred prior to remittal (s 77(6)(b)(i) District Court Act 1967 (Qld); UCPR r 686(2)(a)) and was wrong to require this additional step of the plaintiff. Senior Judge Trafford-Walker's order of 7 July 1999 that "the Defendant pay the Plaintiff's costs of and incidental to the action to be taxed" included the costs both in the Supreme Court and the District Court. Any tension between the procedural effect of s 77(6) District Court Act 1967 (Qld) in its earlier form and UCPR r 686(2)(a) was removed by the amendment to that section which came into force on 1 March 2000, before the assessment commenced.

The Deputy Registrar's assessment and the parties' unsuccessful applications for reconsideration,⁷somewhat astonishingly, were heard over 10 days in March and April 2000. Ordinarily, an assessment of costs should be conducted primarily on the costs statement⁸and the notice of objection to the costs statement⁹with oral hearings completed in hours rather than days. A Deputy Registrar has power to give directions as to the conduct of assessments¹⁰which could include placing reasonable time limits on oral submissions. The Deputy Registrar here finally allowed costs of $19,388.90 which included the costs prior to remittal and a set off of $5,224.74 for the defendant's costs of the assessment.¹¹

The learned District Court judge, in a detailed and thoughtfully reasoned 60 page judgment, carefully considered the many matters raised by the plaintiff in the review, upholding nine matters in full, partially upholding four other matters and rejecting others. The amended costs assessed by the learned District Court judge (including the costs incurred prior to remittal) totalled $29,294.75, a sum close to, but still less than the $30,000 costs offer made by the defendant in February 2000. The judge made no order as to the costs of the review.

The plaintiff, who is represented by Mr Hanson QC and Mr Gray, contends that leave to appeal should be given primarily for three reasons. First, an important question of law is raised in the appeal as to the interpretation of District Court scale item 27. Item 27 then provided for a maximum amount to be paid to a solicitor of $3,013 for instructions, for brief to counsel on trial and instructions generally throughout the proceedings, including allowances for all attendances on and correspondence with the plaintiff and witnesses. Mr Hanson correctly submits that there are two methods of approaching an assessment under item 27: either assess a reasonable amount and if that amount exceeds the maximum, allow the maximum; or reserve the maximum for the most complex matters and allow a figure up to the maximum according to the complexity of the matter. Of course, in complex, important, difficult or urgent cases an application can be made for an increase of up to 30 per cent in the scale.¹²

The learned primary judge noted that the item 27 maximum was then too low, referring with apparent approval to the comments of Robin DCJ in Boral Resources (Queensland) Pty Ltd v Trim.¹³His Honour then adopted the second of the approaches set out above, which was also the approach taken by the Deputy Registrar. His Honour regarded the action as "somewhat complex", determined that an amount approaching the maximum was justified; the $2,000 allowed by the Deputy Registrar was inadequate and his Honour allowed instead $2,800. Interestingly, the plaintiff also appeared to take this approach in asking for item 27 costs of $3,000 rather than the then maximum of $3,013. The approach taken by the learned District Court judge was one which was at least as attractive as the alternative; the matter certainly does not warrant the granting of leave to appeal.

Mr Hanson next submits that the offer of 3 February 2000 was not an offer under the UCPR because UCPR r 721(2)(b) requires the offer to "be for all of the person's liability for costs to the party to whom it is made" (our emphasis); the offer related only to the costs incurred after remittal because the costs ordered by Senior Judge Trafford-Walker on 7 July 1999 related only to those costs. It is clear that, at least since the amended s 77(6) District Court Act 1967 (Qld) came into force on 1 March 2000, an offer to settle costs "of the action" included the costs incurred prior to the remittal: see also UCPR r 686. The offer to settle costs remained open until the start of the assessment on 7 March 2000¹⁴so there can be no doubt that the amended procedural s 77(6) District Court Act 1967 (Qld) applied to this offer. The learned primary judge was right to consider the offer to settle costs was an offer under UCPR r 721.

Third, Mr Hanson contends that the defendant should not be allowed to benefit from a favourable costs order of the assessment because he raised the matter of the costs incurred prior to remittal on the first day of the assessment and not in the notice of objection; had the plaintiff been aware that the offer related only to costs incurred after remittal, he would almost certainly have accepted the offer because the costs he claimed after remittal were less than $30,000. The difficulty for the plaintiff is that the offer did, as he originally thought, include the costs incurred both before and after remittal; the defendant wrongly submitted the contrary. The offer to settle costs was a regular offer under UCPR r 721 which the plaintiff simply failed to accept; the consequences under UCPR r 722(4) followed. The Deputy Registrar or the reviewing judge could have reduced the costs order in favour of the defendant to express disapproval of the defendant's conduct in raising an expensive, time-consuming unmeritorious point, but they were not obliged so to do. On the other hand, the plaintiff declined to accept an offer to settle costs which was proven to be reasonable and an expensive and time-consuming assessment followed. The District Court judge rightly concluded that the Deputy Registrar was entitled to order that the plaintiff pay the defendant's costs of the assessment.

A number of other points said to justify the granting of leave were raised by the plaintiff in his written submissions and whilst not abandoned, Mr Hanson conceded they were less compelling than the three contentions emphasised in his oral submissions. The application involves a comparatively modest sum, although no doubt a sum of significance to the plaintiff. Were leave granted, the appeal would be from a review by a District Court judge of an exercise of discretion of the Deputy Registrar as to an assessment of costs. Such exercises of discretion are not lightly overturned: see House v The King.¹⁵We are not persuaded that any of these additional points, alone or collectively, raises a matter of law or justice of sufficient significance to justify the grant of leave to appeal in the circumstances of this case.

We would refuse the application for leave to appeal with costs to be assessed.

Footnotes

1. UCPR r 742. ↩

2. UCPR r 709. ↩

3. UCPR r 710. ↩

4. UCPR r 717. ↩

5. Section 77(6)(b)(i) then relevantly provided: ↩

6. The UCPR came into force on 1 July 1999: UCPR r 2. ↩

7. UCPR r 741. ↩

8. UCPR rr 709-712. ↩

9. UCPR r 717. ↩

10. UCPR r 706. ↩

11. The plaintiff's costs did not exceed the offer of 3 February 2000 and the Deputy Registrar made this order under UCPR r 722(4). ↩

12. UCPR r 690(5) and (6). ↩

13. Appeal No 23 of 1993, 2 December 1996. ↩

14. UCPR r 721(3)(c). ↩

15. (1936) 55 CLR 499, 507.