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[2025] QCA 63
respondent. Appeal dismissed. The parties were directed to file written submissions as to costs, limited to five pages, within seven days ( [41] ).
The Court of Appeal dismissed Thompson’s appeal. His application had asked for “appropriate orders” and “appropriate directions” without identifying what he wanted the Court to order. The Court accepted the primary judge’s description of that relief as indiscernible. It also held that an earlier, unappealed order by Callaghan J had refused repayment of the costs already received while a new costs assessment remained to be completed. The Court rejected Thompson’s bias arguments and ordered written submissions on appeal costs.
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2,230 words · generated 07/10/2026
In Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc [2025] QCA 63, the Queensland Court of Appeal dismissed James Boyd Thompson’s appeal from an interlocutory decision about a costs dispute. Bond and Flanagan JJA agreed with Bradley JA’s reasons and proposed orders ( [1]–[2] ).
1 cited instrument linked from this judgment.
The dispute grew out of a 2020 costs order made against Thompson after an unsuccessful appeal. The respondent served a costs statement, Thompson objected to almost every item, and a costs assessor assessed the amount payable at $68,539.70. Thompson paid the costs. The chronology reproduced by the primary judge records that the certificate was filed on 4 November 2022, although it also records earlier dates for related steps, including the Registrar’s order in November 2020 ( [4] ). The Court of Appeal’s decision did not resolve any issue arising from that chronology beyond the matters raised on appeal.
Thompson later obtained orders from Callaghan J setting aside the costs certificate and the Registrar’s costs order. Callaghan J directed a further costs-assessment process, subject to conditions, including Thompson paying money into court and providing further material. The 2020 costs order itself remained in force ( [4], [22] ).
Following disputes about documents and directions for the new assessment, Thompson filed an application on 3 July 2024. It asked the Court to make “the appropriate orders” to “regularise the anomalous situation” and to make “any order or give directions the court considers appropriate” ( [5] ). The primary judge concluded that the relief was indiscernible and dismissed the application. Thompson appealed, alleging factual mistakes and apprehended bias. The Court of Appeal dismissed the appeal, with costs submissions to follow ( [3], [16]–[17], [39]–[41] ).
The Court addressed the appeal as a strict appeal. Because the orders appealed from did not finally dispose of the parties’ rights, the question was whether the primary judge’s decision was right when it was given, on the material then before her ( [3] ). The Court cited Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd for that approach and noted that neither party asked it to proceed differently under r 765(4) of the Uniform Civil Procedure Rules 1999 (Qld) ( [3] and footnote 3 ).
The decisive problem was the application’s wording. It did not specify what order or direction Thompson wanted. The Court said the request for “appropriate orders” and “appropriate directions” was vague and disclosed no obvious intention ( [9] ). The application contained five recitals describing the situation, but they left the reader to imagine the remedy. The Court considered that the recitals might be consistent with several different forms of relief, but held it would be “imprudent guesswork” to assume which one was intended. In particular, the application did not identify restitution as the relief sought ( [11] ).
The Court also rejected Thompson’s claim that the primary judge should not have needed to look to the matter’s history. The recitals themselves referred to past steps, including the 2020 costs order, the costs certificate, the Registrar’s order and Callaghan J’s Order. In the Court’s view, that history was relevant to understanding the application, rather than a distraction ( [12] ). It noted that restitution was identified in a four-page outline delivered on the hearing day, not in the application as filed. Thompson also accepted during oral submissions that the initial application was “somewhat vague” ( [13]–[14] ). The Court therefore rejected all three alleged factual mistakes about the primary judge’s description of the application ( [16] ).
There was a further, independent obstacle to restitution. Callaghan J had already considered Thompson’s oral request for repayment and had refused to order the respondent to disgorge the money it had received. Callaghan J’s order established a further assessment process; it did not set aside the underlying 2020 costs order ( [22]–[25] ). The Court read Callaghan J’s reasons as deciding that disgorgement was inappropriate pending completion of the new assessment. It rejected Thompson’s proposed reading that he remained free to seek repayment later, because the order did not provide a mechanism for returning to court for that relief in the absence of a new assessment ( [26]–[28] ). The Court concluded that, without an appeal from Callaghan J’s Order and without a new assessment, restitution could not be obtained before the primary judge ( [29] ).
Finally, the Court rejected the apprehended-bias ground. It examined each matter relied on by Thompson, including his claim that submissions had not been read or understood, an exchange about copies of his submissions, the admission of a solicitor’s affidavit and the treatment of payment evidence. The Court considered that the identified submissions were addressed in the reasons, that the exchange was explained by the fact that a copy had gone directly to the judge’s associate, and that the affidavit and payment complaints did not support the suggested inference ( [31]–[38] ). It concluded that a fair-minded observer would not reasonably apprehend that the primary judge might not bring an impartial mind to the matters ( [39] ).
The judgment does not announce a new general rule or purport to alter the law of appeals, costs assessment, restitution or apprehended bias. It applies existing procedural principles to this particular sequence of orders and filings.
For the appeal’s scope, the Court relied on the strict-appeal approach described in Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd: the decision had to be assessed as it stood when the primary judge made it and on the material then available ( [3] ). The Court also cited DU v Jackson (DCJ) in connection with the interlocutory character of the orders (footnote 2).
For restitution, the appellant relied on the statement in Commonwealth v McCormack that an appellant who satisfies a money judgment is entitled, on reversal of that judgment, to repayment with interest ( [21] ). The Court did not decide that principle in isolation or treat it as resolving this dispute. It emphasised that the 2020 costs order remained in force and that Callaghan J’s Order set up a new assessment process while refusing immediate disgorgement ( [22]–[29] ). The decision’s focus was thus the effect of the existing orders and the state of the proceedings, not a general reconsideration of restitution following reversal of a judgment.
On bias, the Court cited Ebner v Official Trustee in Bankruptcy and applied the fair-minded-observer formulation to the asserted circumstances ( [39] and footnote 17 ). It did not state that the procedural events identified by Thompson could never contribute to a bias claim; it concluded that, considered in context, they did not support a reasonable apprehension in this case.
The practical “after” state established by the judgment is procedural: the appeal was dismissed, Callaghan J’s Order remained unappealed and binding between the parties, and written submissions on appeal costs were to be filed within seven days ( [25], [41] ). The decision does not say that the new costs assessment had been completed.
“The relief stated in the application was vague” ( [9] ). The application’s language did not tell the Court what concrete result it was being asked to order. A general request for “appropriate” relief did not enable the Court to identify the remedy.
“To assume any of these would be imprudent guesswork. Certainly, the application did not identify that restitutionary orders were being sought” ( [11] ). The recitals could potentially be read in several ways. The Court would not select a remedy by guessing, and it would not treat the application as a request for repayment when it did not say so.
“This was the first time the appellant identified the relief he was seeking” ( [13] ). The Court distinguished between the application filed earlier and the outline delivered on the hearing day. The later outline stated that Thompson sought restitution and interest, but it did not change what the application itself had specified.
“The appellant’s construction is strained and unnatural” ( [27] ). The Court did not accept that Callaghan J had refused repayment only temporarily in a way that left Thompson free to apply again before the new assessment. It read Callaghan J’s reasons and orders together and found that they did not provide for such a further application.
“Without any successful appeal from Callaghan J’s Order, and without a new costs assessment, the appellant could not obtain a restitutionary order before the primary judge” ( [29] ). The existing order and incomplete assessment process constrained what the later application could achieve. The Court stated that even a clearly expressed request for restitution could not succeed at that stage.
“A fair-minded observer of the hearing would not reasonably have apprehended that the primary judge might not bring an impartial mind” ( [39] ). The Court considered the alleged incidents collectively and found they did not give rise to the asserted concern about impartiality.
The decision is most directly relevant where an interlocutory application uses broad expressions such as “appropriate orders” or “appropriate directions” without identifying the actual relief requested. The Court’s analysis turned on the distinction between background recitals that describe a dispute and operative language that tells the court what order is sought ( [9]–[13] ). It cautions against treating a later oral explanation or hearing-day outline as if the filed application had already identified that relief ( [13]–[16] ).
It is also relevant where a party seeks repayment after a costs certificate or related order has been set aside, but the underlying costs order remains in force and a prior order has directed a new assessment. The Court’s reasoning depended on the terms and procedural effect of Callaghan J’s Order, including its refusal to require disgorgement at that stage and the absence of a provision allowing a later restitution application without a new assessment ( [22]–[29] ). The decision does not establish that every setting-aside of a costs certificate has the same consequences. The actual orders and procedural history would matter.
For bias arguments, the judgment illustrates the Court’s attention to the whole hearing context rather than isolated events. The alleged incidents included a question about duplicate copies, a decision to receive an affidavit for chronological context, and an asserted failure to focus on payment evidence. The Court considered explanations and whether anything material turned on those events ( [33]–[38] ). Its conclusion was specific to the evidence and circumstances described in the judgment.
The appeal standard also matters when the challenged decision is interlocutory and does not finally dispose of the parties’ rights. Here, the Court expressly confined its inquiry to whether the decision was right when given on the material then before the primary judge ( [3] ).
The judgment supplies no account of decisions delivered after 7 May 2025 and cannot establish how later courts have treated it. It therefore does not support a claim that the decision has been followed, distinguished or otherwise applied by later courts.
The authorities it itself cites have different roles. Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd and DU v Jackson (DCJ) are cited in explaining the appeal’s interlocutory, strict-appeal character ( [3] and footnotes 2–3 ). Commonwealth v McCormack is cited for the restitution proposition advanced by Thompson ( [21] ). Ebner v Official Trustee in Bankruptcy is cited in connection with the bias ground ( [39] ). The Court’s reasoning in this judgment should not be confused with the reasoning of those other courts.
The judgment also refers to earlier decisions in the same litigation, including Callaghan J’s 2023 decision and the 2024 decisions of Muir J and Treston J ( [4]–[5] ). It explains the procedural history and the effect of Callaghan J’s Order. Those references are part of the present Court of Appeal’s analysis, not evidence of later treatment of this 2025 decision.
The judgment does not determine what result a properly framed restitution application might receive after completion of the new costs assessment. Its holding is tied to the unappealed Callaghan J Order and the absence, at the relevant time, of a completed new assessment ( [25]–[29] ). The judgment does not describe the eventual assessment or any later application.
It also does not determine the final amount payable under the new assessment. The Court records that the earlier certificate assessed $68,539.70 and that the process was to be repeated, but its orders do not decide the outcome of that process ( [4], [22]–[25] ).
The appeal costs remained unresolved when judgment was delivered. The Court directed the parties to file written submissions, limited to five pages, within seven days ( [40]–[41] ).
Finally, the Court did not need to determine the merits of the appellant’s other grounds of appeal because they could not alter the outcome once the dismissal of the application was upheld. It said the other challenges had no merit, but did not analyse each of the 28 other points individually ( [18]–[20] ). The judgment therefore does not provide separate rulings on every argument raised in the notice of appeal.
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Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc [2025] QCA 63
PARTIES: JAMES BOYD THOMPSON / (appellant) / v / CAVALIER KING CHARLES SPANIEL RESCUE (QLD) INC / (respondent)
FILE NO/S: Appeal No 16231 of 2024 / SC No 12173 of 2018
DIVISION: Court of Appeal
PROCEEDING: General Civil Appeal
ORIGINATING COURT: Supreme Court at Brisbane – [2024] QSC 250 (Treston J)
DELIVERED ON: 7 May 2025
DELIVERED AT: Brisbane
HEARING DATE: 15 April 2025
JUDGES: Bond, Flanagan and Bradley JJA
ORDERS: Appeal dismissed. The parties to file written submissions as to costs, limited to five pages, within seven (7) days.
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 appellant in favour of the respondent – where the appellant filed an application seeking indiscernible relief – where the primary judge dismissed the appellant’s application and ordered him to pay the respondent’s costs – whether the primary judge made a mistake of fact in making the decision to dismiss the application – whether the decision of the primary judge was correct when it was given / Uniform Civil Procedure Rules 1999 (Qld), r 435, r 765 / Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616; [1976] HCA 62, cited / DU v Jackson (DCJ) [2024] QCA 122, cited / Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63, cited
COUNSEL: The appellant appeared on his own behalf / C D Templeton for the respondent
SOLICITORS: The appellant appeared on his own behalf / ACLG Lawyers for the respondent
BOND JA: I agree with the reasons for judgment of Bradley JA and with the orders proposed by his Honour.
FLANAGAN JA: I agree with Bradley JA.
BRADLEY JA: On 8 November 2024, the learned primary judge dismissed the appellant’s interlocutory application and ordered him to pay the respondent’s costs.1 The appellant appealed against those orders. The orders did not finally dispose of the rights of the parties.2 So, it was an appeal in the strict sense to determine whether the decision of the primary judge was right when it was given, on the material before her Honour at that time.3
Drawing on two earlier decisions in the same proceeding,4 the primary judge set out the following relevant chronology:
“[5] In 2020, following an unsuccessful appeal to the Court of Appeal, a costs order was made against the applicant (the 2020 costs order).
[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 [(the Registrar’s costs order)].
[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. …
[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 [(Callaghan J’s Order)]. 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.”5
The dismissal of the interlocutory application
“[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.
…
[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.
…
[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.”6
The appellant challenged the primary judge’s order on the ground it was affected by three “mistakes of fact.”7 Each concerned her Honour’s description of the relief sought in the interlocutory application.The first alleged mistake was to describe the relief as “indiscernible”.The second was to state that one needed to “look back at the matters long and chequered history” to understand the application.The third alleged mistake was to state that the assistance of the respondent was required to make clear that the relief sought related back to the 2020 costs order.
The appellant contended that the “intention” of his application would have been “obvious” had the primary judge considered the 21 authorities he had provided (presumably to her Honour’s associate) “two clear days” before the hearing. He submitted that looking to the history of the proceeding was a distraction that added “complexity to the decision.” He contended it was inaccurate to note that the respondent’s assistance was required to make clear that the subject matter of the appellant’s application was the 2020 costs order.
The appellant was wrong in each of these contentions.
The relief stated in the application was vague. By it, the appellant asked the Court to make “appropriate orders” and “appropriate directions”. Any actual relief sought could not be discerned within the range of orders and directions that could have been described in that way. The application disclosed no obvious intention on the part of the appellant. In it, the appellant had failed to identify with any precision any order or direction he was seeking from the Court. The appellant’s request was free of discernible content.
With respect, the primary judge’s description of the relief sought in the application was accurate.
Unusually, the application included five recitals identified as (a), (b), (c), (d) and another (d). These described “the current situation” in which the “appropriate orders” and “appropriate directions” were sought. The appellant left the reader to imagine what such orders and directions might be. Taking all five recitals collectively (they were joined by “and”), the appellant might have been seeking an order or direction restraining completion of “any new costs assessment” or restraining its enforcement or conditioning its enforcement on giving credit for the payments the appellant had made pursuant to the Cost Certificate or the Registrar’s costs order. The appellant may have been seeking other orders and directions. To assume any of these would be imprudent guesswork. Certainly, the application did not identify that restitutionary orders were being sought.
As her Honour found, the recitals in the application indicated that to understand the application, it would be necessary to consider the history of the proceeding, in particular, the 2020 costs order, the Costs Certificate, the Registrar’s costs order, Callaghan J’s Order, and likely what had occurred since that order was made. According to his application, these were matters on which the appellant intended to rely. The appellant’s submission that they were a “distraction” cannot be accepted. By his furtive approach to these matters, the appellant left it to the respondent to assist the primary judge with the relevant history.
“Since that filing that application I’ve done a fair bit of research and I now know that the right thing to do is restitution of the money according to Queensland Court of Appeal, and the High Court as well. And the Queensland Court of Appeal says with interest compounded monthly from the date of payments.”
These frank statements to the primary judge may be contrasted with the appellant’s written submission for the appeal that, “The relief the applicant was seeking ought to have been obvious to any intelligent recipient.” The casual discourtesy of the latter remark is as distasteful as the appellant’s Janus-faced approach to submissions.
The three alleged mistakes of fact, noted at [6] above, were the appellant’s only challenge to the primary judge’s conclusion that the interlocutory application ought to be dismissed because the relief sought was indiscernible so that restitutionary relief was not available to the appellant on the application as filed. Those challenges have failed.
In the circumstances, the appeal should be dismissed.
The other grounds of appeal
The balance of the appellant’s grounds of appeal8 concern other parts of the primary judge’s reasons. Most concern her Honour’s explanation that the Court would not have granted the appellant the restitutionary relief, which he said he intended to seek) even if the interlocutory application had clearly reflected such an intention. In these parts, the primary judge explained that the Court would have stayed the interlocutory application until a new costs assessment was completed in accordance with the order and directions of Justice Callaghan.
As the appeal against the dismissal of the application has failed, the appellant’s other challenges to the reasons of the primary judge cannot alter the outcome of the appeal. It is not necessary to deal with them. None has any merit.
Two of the other matters may be dealt with briefly.
Entitlement to restitution
The appellant submitted that he had an entitlement to an order requiring the respondent to repay the total sum he had paid pursuant to the Registrar’s costs order. He relied on the principle that “An appellant who has satisfied a judgment for the payment of money is entitled, on the reversal of the judgment, to repayment of the money paid by him with interest.”9
At the hearing of the appeal, the appellant accepted that the 2020 costs order remained in force, and that he owed the respondent the costs this Court had ordered him to pay. The appellant’s ability to seek a restitutionary order was affected by Callaghan J’s Order. It did not set aside the 2020 costs order. Rather, it provided for the process for quantification of those costs to be repeated and a new costs assessment made.
The effect of Callaghan J’s Order
“(a) the appellant objected to almost every item in the costs assessment;
some of the objections were trivial to the point of being scandalous – for example, an objection about 25 cents;
the appellant did nevertheless, have some success in those objections; but
there are no demonstrated prospects of further meaningful revision.”10
“[58] In the circumstances, it will be ordered that, should the appellant maintain his desire for a new costs assessment, and should he pay into court the estimated amount that will be required to cover this process (and any further request for reasons), the registrar choose one of the (total of) five nominated costs assessors to complete the exercise.
[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.”
In making Callaghan J’s Order, Justice Callaghan considered the appellant’s oral application for a restitutionary order. His Honour refused it. Reasons explained the refusal. There was no appeal from Callaghan J’s Order. It binds the appellant and the respondent. It follows that the appellant’s application before the primary judge, even if it had sought discernible restitutionary relief, could never have succeeded.
At the appeal hearing, the appellant submitted that the last sentence in paragraph [59] of Justice Callaghan’s reasons meant that his Honour had decided a restitutionary order was inappropriate only “at this time.” The appellant submitted this construction was supported by the final paragraph of Justice Callaghan’s reasons, in which his Honour stated that if the appellant failed to take the steps required to set aside the Costs Assessment and the Registrar’s costs order, “then the respondent, as the successful litigant should get its costs of the appeal.” The appellant contended this meant that the respondent could retain the amount the appellant had paid for the 2020 costs order, only if the Costs Assessment and the Registrar’s costs order were not set aside. The appellant submitted he was free to seek a restitutionary order at a time after the assessment and the order were set aside.
The appellant’s construction is strained and unnatural. Given the terms of Callaghan J’s Order, the matters in issue before Justice Callaghan, and his Honour’s expression and punctuation, the ordinary and natural meaning of paragraph [59] is that his Honour had considered the appellant’s argument and decided it would be inappropriate to make any order that the respondent disgorge any monies already received by it until the new costs assessment had been completed. The final paragraph of his Honour’s reasons was no more than the reasons for paragraphs [8]-[10] of Callaghan J’s Order, which provided that, if the appellant failed to do the things on which a new costs assessment was conditioned, the appellant’s challenge to the 2020 Costs Assessment and the Registrar’s costs order would be dismissed. The hearing before Justice Callaghan was itself an appeal as to costs.
This conclusion is fortified by the absence of any order or direction allowing or providing for the appellant to return to seek a restitutionary order (e.g. on certain notice or in certain circumstances) in the absence of a new costs assessment. Callaghan J’s Order reserved only the appellant’s and the respondent’s costs of the applications before his Honour “pending the outcome of the new costs assessment.”
Without any successful appeal from Callaghan J’s Order, and without a new costs assessment, the appellant could not obtain a restitutionary order before the primary judge. It follows that, if a restitutionary order was open and available on the appellant’s interlocutory application, then the primary judge would have been obliged to refuse that relief or stay the application until a new costs assessment was completed.
Alleged bias
The appellant also contended that the primary judge was biased. He relied on four matters to support this ground.
First, the appellant submitted that the primary judge had “not read at all or not grasped” “some submissions and material” he had provided.11
This submission was wrong. To the extent the appellant identified any relevant submissions,12 her Honour dealt with the submissions in the reasons: The competing submissions about whether the appellant made a request for restitution before Justice Callaghan were dealt with at [23], [28]-[30], [32], [37] and [38];The submissions on whether it was difficult to discern the relief sought on the application were dealt with at [1]-[3], [34] and [46];The submissions on whether restitution needed to have been mentioned in the application heard by Justice Callaghan was dealt with at [28]-[30], [37] and [38];The submissions about whether there had been a material change of circumstances following the 2023 Callaghan J Order were dealt with at [31], [32] and [39];The submissions about when a new costs assessment certificate might be filed were dealt with at [32] and [41];Whether the respondent had made payments to its solicitors was dealt with at [39]; point 6.2(f) at [28] and [42]; andThe change of position defence issues were dealt with at [39] and [40].
Second, the appellant contended an early question by the primary judge “well illustrated” that her Honour “was not listening to the applicant or not listening carefully”.13
The transcript recorded her Honour’s question and the polite explanation given in the moment of the exchange:
“HER HONOUR: All right. So I give you leave to read and file your list of material and list of authorities. Have you got an extra copy of this, Mr Thompson, or is this – sometimes people hand up a working copy for the judge and then another copy for the file, have you got a spare copy, or not?
MR THOMPSON: I think I just told you that I handed up two copies of my argument.
HER HONOUR: I beg your pardon. The other one went to my Associate directly, so I didn’t see that. Thank you. Well, I’ll use this one as my working copy. Thank you very much.”
This occurred before her Honour adjourned to read the parties’ written submissions. The exchange does not give rise to any reasonable apprehension of bias.
Third, the appellant submitted that the primary judge “granted greater latitude” to the respondent than to the appellant because her Honour considered the lack of clarity in the relief sought in the application more significant than the absence of a certificate for an exhibit14 in a solicitor’s affidavit read on behalf of the respondent.15
The appellant had objected to the respondent reading the affidavit, which exhibited a copy of directions made by the new costs assessor on 11 September 2024. The objection was not made on the basis that the certificate of exhibit was absent, but on the basis that the affidavit was affirmed only on the day of the hearing. Her Honour gave the respondent leave to read and file the affidavit “because it’s important that I understand the chronology and the compliance with or non-compliance with the orders of this court.” In the context of the hearing, the absence of the certificate was a matter of technicality. The indiscernible nature of the relief the appellant sought was a matter of substance. The appellant’s comparison was inapt.
Fourth, the appellant submitted that the primary judge “took no notice” of the appellant’s “evidence and exhibits” about his payment of the 2020 costs order “but was willing to accept the respondent’s mere verbal submissions.”16 The payment of the originally assessed costs amount was not in dispute between the parties before her Honour. The respondent had tendered a chronology recording the appellant had made the payment in February 2021. The appellant had affirmed that he made five separate payments between 1 February and 20 October 2021. Nothing turned on this timing difference. There was no reason for the primary judge to focus on the appellant’s evidence on this topic.
Witnessing all these events, a fair-minded observer of the hearing would not reasonably have apprehended that the primary judge might not bring an impartial mind to the resolution of the matters to be decided.17 The appellant’s bias contentions should be rejected.
Costs
Disposition of the appeal
Appeal dismissed.
The parties to file written submissions as to costs, limited to five pages, within seven (7) days.
Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc (No 2) [2024] QSC 250. ↩
DU v Jackson (DCJ) [2024] QCA 122 at [24]-[27] (Dalton JA; Bond JA agreeing at [2]). ↩
Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616, 619 (Mason J). Neither party sought to persuade the Court to proceed otherwise, pursuant to r 765(4) of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR). ↩
Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc [2023] QSC 214 (Callaghan J); and Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc [2024] QSC 197 (Muir J). ↩
Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc (No 2) [2024] QSC 250 (Treston J) (citations omitted). ↩
Ibid. ↩
Notice of Appeal, points 2.1, 2.2, and 2.3. ↩
The appellant raised 28 other points within the eight grounds of appeal. ↩
Commonwealth v McCormack (1984) 155 CLR 273 at 276. ↩
[2023] QSC 214 at [55]. ↩
Notice of Appeal, point 7.1. ↩
Thompson
Cavalier King Charles Spaniel Rescue
(1976) 135 CLR 616
(2000) 205 CLR 337
(1984) 155 CLR 273
Appeal dismissed. The parties were directed to file written submissions as to costs, limited to five pages, within seven days ( [41] ).
On the day of the hearing before the primary judge, the appellant provided the Court and the respondent with a four-page outline, dated that day. On the final page, the appellant set out the relief he was seeking. It was “restitution” of all amounts he had paid to the respondent for the costs this Court had ordered him to pay to the respondent pursuant to the 2020 Costs Order, interest on those amounts (compounded on monthly rests), and “post-judgment interest”, apparently on the same amount, from 29 September 2023. This was the first time the appellant identified the relief he was seeking.
After appearances were announced and the material read, her Honour adjourned the Court for 30 minutes to give the parties time to read each other’s written outlines. When the hearing resumed, the appellant began his oral submissions before her Honour by accepting that what he called his “initial application” was “somewhat vague”. He explained:
Referring to points 6.1 and 6.2. ↩
Appellant’s Outline, 7.1. ↩
In accordance with r 435 of the UCPR. ↩
Notice of Appeal, point 7.2. ↩
Notice of Appeal, point 7.3; Appellant’s Outline 7.3. ↩
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337. ↩