_Virgtel Ltd & Anor v Zabusky & Ors_

[1]

[1] KEANE JA: Virgtel Limited and Virgtel Global Networks NV ("Virgtel"), are the respondents to an appeal by Harvey Zabusky and others ("Zabusky") against the decision of the learned primary judge, Daubney J, made on 5 December 2008.

[2]

[2] Daubney J refused to stay several orders for costs made against Zabusky by de Jersey CJ and McMurdo J in proceedings by Virgtel against Zabusky. The principal proceedings arise out of the alleged wrongful diversion to Zabusky of payments which should have been made to Virgtel. Zabusky had sought a stay of the orders for costs until the determination of the principal proceedings.

[3]

[3] Daubney J refused Zabusky's application for a stay on the basis that Zabusky had:

[4]

"not demonstrated any basis for a stay of execution in respect of any of these costs orders. Nor is there any reason why I should go behind the exercises of discretion with respect to the costs orders made by de Jersey CJ and McMurdo J respectively".[1]

[5]

[4] As I have said, Zabusky has appealed against the decision of Daubney J. It may be noted that there has been no appeal by Zabusky against any of the orders for costs which have been made in the course of the principal proceedings. The amounts payable under the various orders have been assessed. If a stay were to be granted, Zabusky would also seek an extension of time within which to review the certificates of assessment. Notwithstanding the question as to the stay raised by Zabusky's appeal, the orders are now enforceable pursuant to r 740 of the Uniform Civil Procedure Rules 1999 (Qld) ("the UCPR").

[6]

[5] Virgtel applies to this Court to have Zabusky's appeal against the refusal of the stay struck out or dismissed as incompetent on the basis that the leave required by s 253 of the Supreme Court Act 1995 (Qld) ("the Act") for the bringing of the appeal was not obtained from Daubney J.

[7]

"No order made by any judge of the [Supreme Court] ... as to costs only which by law are left to the discretion of the judge shall be subject to any appeal except by leave of the judge making such order."

[8]

[7] It is to be emphasised that Virgtel's application to strike out the appeal is not put on the basis that Zabusky's appeal is so devoid of prospects of success that it should be struck out as frivolous and vexatious or an abuse of process. Rather, it is said that the appeal against the refusal to stay the execution of the costs orders is an appeal against an order "as to costs only which by law are left to the discretion of the judge". Zabusky neither sought nor obtained leave to appeal against the refusal of the stay.

[9]

[8] Section 253 of the Act serves the important function of filtering appeals as to costs in order to:

[10]

"ensure that the primary judge's balancing of discretionary considerations should not be reconsidered on appeal save in cases where the primary judge has first addressed the question whether there is good reason to allow his or her exercise of the discretion to be reviewed."[2]

[11]

[9] It is said on Virgtel's behalf that s 253 should be applied "according to its terms".[3] In particular it is said that s 253 should not be applied as if it read: "No order ... as to the award of costs only ..." On this view, if the order sought to be appealed can be said to relate to the costs of proceedings, s 253 must be complied with.

[12]

[10] In my respectful opinion, the focus of s 253, considered in context, is indeed upon the exercise of the judicial discretion to award costs as between the parties to the litigation or other parties involved in that litigation.[4] The provisions of s 253 and its counterparts in England and Wales have long been understood as concerned with orders actually awarding costs.[5] As was said by this Court in Re Golden Casket Art Union Office,[6] it is an order that a party pay the other party's costs that is "in terms" of the section an "order as to costs only". Neither party was able to refer to any case where s 253 or its analogues has been held to apply to an order which does not involve the actual disposition of costs of proceedings.

[13]

[11] The grant of a stay by Daubney J would not have altered the substantive legal rights and liabilities of the parties in relation to the costs the subject of those orders.[7] Zabusky did not seek, in its application to Daubney J, to revisit the balancing of discretionary considerations which informed the orders for costs made by de Jersey CJ and McMurdo J.[8] Zabusky's appeal to this Court from the order of Daubney J cannot call into question the striking of the balance of discretionary considerations which informed the making of the orders for costs by de Jersey CJ and McMurdo J. Nor does Zabusky's appeal call into question any supposed error in the process leading to the making of the costs orders by de Jersey CJ and McMurdo J.[9]

[14]

[12] Rather, the decision the subject of the appeal was concerned simply with the question whether the enforcement of Zabusky's liability to pay the costs should be postponed having regard to the considerations relevant to an application for a stay of execution under r 800 of the UCPR or the inherent jurisdiction of the court.

[15]

A determination of Zabusky's appeal by reference to those considerations would not involve this Court in a review of the discretionary considerations which led de Jersey CJ and McMurdo J to make the orders for costs in favour of Virgtel in the principal proceedings.

[16]

[13] Virgtel argued that on the approach urged by Zabusky, an order granting one party a stay of a costs order would have the same effect as an order that the costs of the application be the other party's costs in any event. Virgtel suggested that this showed that an order staying or refusing a stay of a costs order was, in substance, an order "as to costs". But the judicial discretion which is to be exercised in each case is different. The occasion for the exercise of the discretion is different and the discretionary considerations which bear upon the making of an order for costs the payment of which is by that order postponed until the conclusion of the principal proceedings are not the same as the discretionary considerations apt to lead to the grant of a stay in respect of an order for costs which would otherwise have immediate effect. Thus, for example, later events may cast doubt on the continued solvency of the party with the benefit of a costs order so as to dispose a court to grant a stay pending the final disposition of all claims and cross-claims in the proceedings between the parties.

[17]

[14] I agree that s 253 should not be read down so as to reduce its wholesome operation in limiting the number of appeals as to costs which may come before this Court, but it is, in my respectful opinion, also important that the filter should not be applied in an artificially expanded way. In the present case, the only connection between the refusal of the stay and "an order as to costs" is that, historically, the liability the immediate enforcement of which Zabusky sought to stay arose pursuant to such an order. In my respectful opinion, that connection is too tenuous and remote to characterise the refusal of the stay as an "order as to costs".

[18]

[15] In my opinion, the application by Virgtel must be dismissed.

[19]

[16] Virgtel should pay Zabusky's costs of this application to be assessed on the standard basis.

[20]

[17] I note that after the hearing of Virgtel's application, Virgtel forwarded to the Court a document described as a "Precis by Virgtel ... after Argument ...". The Court had not requested any further submissions for any of the parties, and leave to make further written submissions was not sought from the Court. It should be understood that the fair and efficient administration of justice requires that parties to an application or appeal in this Court make their submissions at the hearing afforded them by the Court. That is especially so bearing in mind that written submissions will have been received before oral argument takes place. In exceptional cases, the Court may, on request, grant leave for further written submissions to be made. In this case, leave was not sought by Virgtel to deliver a further written submission. In my opinion the Court should decline to receive this further submission.

[21]

[18] FRASER JA: I agree with the orders proposed by Keane JA and with his Honour's reasons. I agree also with Keane JA's reasons for declining to receive a further submission for one of the parties delivered after the hearing for which leave was not sought or granted.

[22]

[19] WILSON J: I agree with the orders proposed by Keane JA and with his Honour's reasons for judgment. I agree, too, that the document described as a "Precis by Virgtel ... after Argument ..." ought not be received for the reasons given by his Honour.

[23]

[1] Virgtel Ltd & Anor v Zabusky & Ors (No 2) [2008] QSC 316 at [20].

[24]

[2] ASIC v Jorgensen & Ors [2009] QCA 20 at [29].

[25]

[3] Emanuel Management Pty Ltd (in liq) v Foster's Brewing Group Ltd [2003] QCA 516; [2004] 2 Qd R 11 at 14 [6].

[26]

[4] Cf Emanuel Management Pty Ltd (in liq) v Foster's Brewing Group Ltd [2003] QCA 516; [2004] 2 Qd R 11 at 15 - 16

[27]

[7] - [12]; ASIC v Jorgensen & Ors [2009] QCA 20 at [29].

[28]

[5] Scherer v Counting Instruments Ltd (Note) [1986] 1 WLR 615 at 621 - 622; Bankamerica Finance Ltd v Nock [1988] AC 1002 at 1010.

[29]

[6] [1994] QCA 480; [1995] 2 Qd R 346 at 349.

[30]

[7] L Joseph Pty Ltd v Gray (1939) 56 WN (NSW) 190 at 195; Maniotis v Valimi Pty Ltd [2002] VSCA 91; (2002) 4 VR 386 at 393 [37].

[31]

[8] Cf ASIC v Jorgensen & Ors [2009] QCA 20 at [30] - [31].

[32]

[9] Cf [2009] QCA 20 at [25] - [30].

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