Diamantina Shire Council v Rosecove Pty Ltd & others [2025] QDC 29 (2025) 5 QDCR 72

DISTRICT COURT OF QUEENSLAND CITATION: Diamantina Shire Council v Rosecove Pty Ltd & others [2025] QDC 29 PARTIES: DIAMANTINA SHIRE COUNCIL (Plaintiff) v ROSECOVE PTY LTD CAN 010 834 232 (First Defendant) RONALD A BELL (Second Defendant) SUMMERMORE PTY LTD CAN 108 898 433 (Third Defendant) FILE NO: 4638/16 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: District Court at Brisbane DELIVERED ON: 12 March 2025 DELIVERED AT: Brisbane HEARING DATE: 4 February 2025 JUDGE: Porter KC DCJ ORDER: 1. The plaintiff’s application is dismissed. COUNSEL: Mr L. Campbell for the plaintiff SOLICITOR: King & Company Solicitors for the plaintiff -- 1 of 8 -- 2 The application [1] On 3 June 2024, I set this proceeding down for trial in the District Court at Brisbane for 10 days commencing 28 October 2024. It was a commercial list matter. On 3 July 2024, the plaintiff paid the setting down fee and hearing fees for the trial totalling $23,117 (the fees). On 30 August 2024, I adjourned the trial and ordered it commence on 2 December 2024. The matter was settled, and the trial did not proceed. [2] Can the plaintiff recover all or part of the fees? [3] Setting down fees and hearing fees are dealt with by the Uniform Civil Procedure (Fees) Regulation 2019 (the Fee Regulations). The only regulation touching on refunds of setting down and hearing fees is reg. 6 which provides: Refund of setting down fee and hearing fee A registrar must refund 75% of the setting down fee and hearing fee paid by a party to a proceeding if— (a) the party gives the registrar a request for refund of the fees in the approved form, at least 10 business days before the first day set for the hearing or trial of the proceeding, stating the hearing or trial will not happen; and (b) the hearing or trial of the proceeding does not happen. [4] The approved form is Form 130 which relevantly provides: REQUEST FOR FEE REFUND 1. The <Plaintiff/Applicant/Appellant> hereby notifies the Registrar that the <trial/hearing> scheduled to commence on <date>i is no longer required for the following reasons: [State reasons trial/hearing not required e.g. The proceeding has settled.]ii 2. All other parties in this proceeding have been advised that the trial/hearing will not be required. 3. Pursuant to s…. of the Uniform Civil Procedure (Fees) Regulation 2009 the <Plaintiff/Applicant/Appellant> requests that the registrar refund 75% of the <amount> setting down and hearing fees paid to the court on <date>.iii (i) If listed on a running list insert first day of sittings. (ii) (Insert if appropriate) “and the Plaintiff gives the registrar written notice pursuant to rule 308A of the Uniform Civil Procedure Rules 1999 that the proceeding has settled” (insert if appropriate) <and requests the proceeding be listed for a settlement order>. [5] Footnote (ii) calls up Rule 308A Uniform Civil Procedure Rules 1999 (the UCPR) which provides: 308A Discontinuance by parties when proceeding settled (1) This rule applies if a proceeding is settled, whether or not a request for trial date has been filed. -- 2 of 8 -- 3 (2) Each party must immediately give the registrar written notice that the proceeding has been settled. [6] Regulation 6 imposes an obligation on the registrar to refund when the following conditions are met: (a) The party gives the registrar a request for a refund of the fees; (b) The request is in the form of Form 130; (c) The request states that the trial will not happen; (d) The party gives the request at least 10 business days before the first day set for trial; and (e) The trial in fact does not proceed. [7] Form 130 adds to those conditions the following information: (a) The reason for trial not being required; and (b) A statement that all parties have been informed that the trial is not required. [8] The conditions for a refund do not require a party to give a 308A Notice as such, though it does incorporate the notice required under that rule in the Form 130. [9] The relevant facts to the application of reg. 6 in this case are as follows: (a) On 12 November 2024, the plaintiff’s solicitor informed the registry officer managing the commercial list that the matter had settled (which is characterised as notice under Rule 308A by the plaintiff, though did not refer to that rule); (b) On 13 November 2024, the trial Judge’s associate, communicated to the parties by email that the trial Judge (Judge Heaton KC) had ordered the vacation of the trial dates (and the file was endorsed with that order on that date); (c) Ten business days before 2 December 2024 (being the first day set for the trial) was 18 November 20241 (or adopting a less generous approach to calculation of time, 15 November); (d) On 25 November 2024, the plaintiff’s solicitors wrote to the registrar, referring to the payment of fees and the order of Judge Heaton and stated, “Now that the trial dates have been vacated, please arrange a refund of fees paid” and gave particulars for payment. The letter did not include a Form 130. (e) On 29 November 2024, a registry officer responded as follows: 1 Excluding weekends. -- 3 of 8 -- 4 “…there is no provision for me to provide a refund as the appropriate form has not been filed requesting a fee refund and this form has not been filed at least 10 business days before the first day set for the hearing”. (f) On 29 November 2024, the plaintiffs’ solicitors responded, setting out the matters above and enclosing a completed Form 130 and called on the registrar to confirm that no discretion exists to refund the fees in the circumstances, in which case the application before me would be filed; (g) On the same date, the registry officer responded confirming the position in his earlier email. [10] The plaintiff by its application seeks an order from this Court directing the refund of the fees, despite non-compliance with the formal requirements stated in reg. 6. It ultimately advanced two submissions as to how this Court could make such an order: (a) The Court had power to order a refund despite non-compliance with the formalities in reg. 6 as part of its implied powers arising from its power to hear and determine the action in the claim and statement of claim; or (b) The Court could make an order, nunc pro tunc, listing the trial only for one day, presumably with a restitutionary entitlement to recover the fees beyond those payable for a one day hearing thereby arising. [11] I do not accept either submission. No implied power [12] The conferral of jurisdiction on an inferior Court to hear and determine a matter carries with it a conferral by implication of all the powers required to exercise that jurisdiction, to control the processes of the Court and to prevent an abuse of the Court’s processes. The point is sufficiently articulated in the on-line version of Halsbury’s Laws of Australia at [125-165] as follows (omitting voluminous footnotes): Superior courts of general jurisdiction have inherent powers. The term inherent jurisdiction can be used interchangeably with inherent power. Federal courts, as superior courts of limited statutory jurisdiction, have implied or incidental powers which are similar to the inherent powers of superior courts of general jurisdiction. The categories of such powers are not closed but must be exercised within the jurisdiction of the court and do not extend the jurisdiction of the court. They may be altered by express and clear statutory provisions. Inherent and incidental powers may be used in the following circumstances: (1) to define and control the practice of the court, including the making of rules of practice; (2) to prevent unfairness or an abuse of process; (3) to restrict the publication of proceedings; (4) setting aside orders made in default; and (5) punishing contempt. Inferior courts do not have inherent powers but have implied powers derived from the statutory grant of jurisdiction. Implied powers perform a similar function to inherent powers -- 4 of 8 -- 5 but are more limited. Implied powers must be necessary to the exercise of the jurisdiction of the court. [13] Such implied power is subject to statutory modification, which might widen or narrow the scope of the implied power.2 Although the District Court is an inferior Court, s. 69 District Court of Queensland Act 1967 might be thought to both provide a specific statutory source of implied power and to enlarge the scope of those powers by conferring for the purposes of exercising the Court’s civil jurisdiction, all the powers and authorities of the Supreme Court, whether inherent in that superior Court or conferred on that Court by statute. So, in determining the scope of the implied powers of the District Court, one is not confined to a consideration of the common law implication of implied powers for inferior Courts but may also have regard to the whole of the powers of the Supreme Court (even substantive powers which would otherwise be beyond the jurisdiction of the District Court, such as removing an executor.3). [14] The plaintiff submitted that the implied power extended to ordering the refund of the fees despite non-compliance with the statutory pre-conditions to that refund in reg. 6. It was submitted this was an instance of the Court exercising its power to manage its own process to prevent injustice or unfairness. It was submitted that power was properly exercised because although the plaintiff did not comply with the statutory requirements of reg. 6, it did promptly notify the registry, via the relevant list manager, of the settlement of the proceedings well before the due date. It therefore acted within the spirit of reg. 6, even if not within its strict requirements. [15] Broad though the scope of this Court’s implied powers might be, and open though the categories of implied and inherent powers might be, they necessarily have a limit. I do not consider that the Court’s implied powers extend to permit it to order the registrar to refund the fees despite non-compliance with reg. 6. [16] The obligation to pay setting down and hearing fees is imposed by regulations made under the Supreme Court Act 1991 (SCA). Those regulations are made under s. 92 SCA which provides: 92 Regulation-making power (1) The Governor in Council may make regulations under this Act. (2) Without limiting subsection (1), the Governor in Council may make regulations under this Act for the following matters— (a) to prescribe fees and costs for the Supreme Court, District Court, Magistrates Courts or Planning and Environment Court (the courts); (b) to provide how fees, costs and fines are to be received and dealt with in the courts. 2 Jago v District Court of New South Wales (1989) 168 CLR 23 [74] (Gaudron J). 3 See Waters v Odell [2023] QDC 44 [235]-[239]. -- 5 of 8 -- 6 [17] The Fee Regulations are made under s. 92 and specifically authorised under s. 92(2) SCA. As a valid exercise of delegated law making, the Fee Regulations, including reg. 6, are binding on the Court and the registrar. [18] No authority was cited for the proposition that the Court’s implied power extends to a power over fees for hearings (whether that be to impose or waive fees). It is difficult to see how such a power could arise. Where jurisdiction is conferred on a court and that jurisdiction is lawfully invoked, the court has a duty to exercise it.4 An implied power to impose fees is inimical to that fundamental duty. The only source of the power to impose fees is the regulations. If there is no power to impose fees, I cannot see how the Court can have power to waive them or to compel their refund by the registrar contrary to the statutory scheme which imposes them. No power to make nunc pro tunc order [19] The plaintiff advanced a submission based on my suggestion that perhaps an order could be made listing the trial for only one day on a nunc pro tunc basis such that the exaction of fees for further days could be recovered by a restitutionary claim. In hindsight, that suggestion was embarrassingly misconceived (by me). It is essential to making a nunc pro tunc order that the order would have been made if sought on that earlier date. Obviously, no such order would have been made when I set the trial down for 10 days nor when I adjourned it to 2 December 2024, because at both of those times the parties were seeking a listing for 10 days. Can the notice period be avoided? [20] The plaintiff further submitted that on Judge Heaton vacating the trial dates on 12 November 2024, there was no longer “a first day set for the hearing” and accordingly, from 12 November 2024, there was no longer any date 10 business days before the first day of the trial because the trial was not going ahead at all. Thus, there was no date by which the “request for refund of the fees in the approved form” was to be given to the registrar. [21] I was not certain of the purpose of this submission. [22] One purpose was to persuade the Court that reg. 6 was not applicable on the facts of this case and to thereby strengthen the case for the Court exercising its implied power to order a refund of the fees on the basis that it was particularly unjust that, absent reg. 6 applying, there was no basis upon which the fees could be recovered. If that is the purpose, the submission is moot because I have rejected the proposition that the Court has any implied jurisdiction to regulate fees for hearings. [23] Another possible purpose was to suggest that the giving of notice on 25 November (or alternatively the giving of notice in the approved form on 29 November) was sufficient compliance with reg. 6 to require the registrar to refund the fees under that regulation, given that the condition as to time for notice could not be complied 4 Macks, Re; Ex parte Saint (2000) 204 CLR 158 [53] (Gaudron J); R v Commonwealth Court of Conciliation & Arbitration; Ex parte Ozone Theatres (1949) 78 CLR 389; Kronen v Commercial Motor Industries Pty Ltd [2021] FCAFC 42 [52] (White, Charlesworth and O'Callaghan JJ). -- 6 of 8 -- 7 with. Even if this construction of the regulation was correct (and I doubt it very much), I do not agree with the proposition that there was no first day set for the hearing when the trial was vacated. [24] In my view, on the proper construction of the regulation, the first day set for the hearing will be the first date which the Court set for the hearing of the trial at the time the trial was set down (or as ordered by subsequent adjournment of the trial), regardless of whether and when the trial dates are vacated by the Court. [25] The construction contended for by the plaintiff would unduly narrow the scope for the refund under reg. 6 because in many cases, a Judge will vacate the trial dates well before the 10 business day period. Conclusion [26] For the above reasons, I am not persuaded that the plaintiff has demonstrated that this Court has any power to order the registrar to repay some or all of the fees. [27] I should add that this does not mean that, if in the past, a registrar has refunded fees other than in circumstances of strict compliance with the conditions in reg. 6, he or she has acted beyond power. Whether, and to what extent, compliance with statutory conditions is necessary to a valid exercise of the power depends on the proper construction of the statute. In Project Blue Sky Inc v Australia Broadcasting Authority (1998) 194 CLR 355, the majority observed in a well-known passage (footnotes omitted): 91 An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue. 92 Traditionally, the courts have distinguished between acts done in breach of an essential preliminary to the exercise of a statutory power or authority and acts done in breach of a procedural condition for the exercise of a statutory power or authority. Cases falling within the first category are regarded as going to the jurisdiction of the person or body exercising the power or authority. Compliance with the condition is regarded as mandatory, and failure to comply with the condition will result in the invalidity of an act done in breach of the condition. Cases falling within the second category are traditionally classified as directory rather than mandatory. In Pearse v Morrice, Taunton J said “a clause is directory where the provisions contain mere matter of direction and nothing more”. In R v Loxdale, Lord Mansfield CJ said “[t]here is a known distinction between circumstances which are of the essence of a thing required to be done by an Act of Parliament, and clauses merely directory”. As a result, if the statutory condition is regarded as directory, an act done in breach of it does not result in invalidity. However, statements can be found in the cases to support the proposition that, even if the condition is classified as directory, invalidity will result from non-compliance unless there has been “substantial compliance” with the provisions governing the exercise of the power. But it is impossible to reconcile these statements with the many cases which have held an act valid where there has been no -- 7 of 8 -- 8 substantial compliance with the provision authorising the act in question. Indeed in many of these cases, substantial compliance was not an issue simply because, as Dawson J pointed out in Hunter Resources Ltd v Melville when discussing the statutory provision in that case: “substantial compliance with the relevant statutory requirement was not possible. Either there was compliance or there was not.” [28] It is not possible to determine in the abstract whether and to what extent the conditions in reg. 6 must be complied with for a valid exercise of power to refund. One might reasonably think, however, that the requirement for the request to be made using Form 130 seems unlikely to be essential. The purpose of the regulation is in my view to facilitate the refund of fees in circumstances where the Court has a reasonable opportunity of making alternative use of the relevant Court. One might think that any unequivocal written request made before the relevant date would be sufficient to meet that purpose. Other arguments as to the essentiality of the period of notice might also be made. [29] However, it does appear from the circumstances of this case that reg. 6 is unduly inflexible, particularly bearing in mind that in some cases the amount of setting down and hearing fees can be quite considerable in comparison to the quantum of a civil claim, particularly for claims in the District Court. [30] Further, experience suggests that informal notice procedures regularly result in the Court becoming aware of the abandonment of a trial well before the 10 day period, making the timing of a formal request for repayment otiose from the perspective of the purpose of reg. 6. [31] A considerably more flexible approach to refund of setting down and hearing fees should be considered. However on the current state of the law, the application must be dismissed. -- 8 of 8 --