Anderson v Pickles Auctions Pty Ltd [2023] QSC 12 (2023) 13 QR 286

SUPREME COURT OF QUEENSLAND CITATION: Anderson v Pickles Auctions Pty Ltd [2023] QSC 12 PARTIES: MARK DE LEIGE ANDERSON (plaintiff/applicant) v PICKLES AUCTIONS PTY LTD ABN 32 003 417 650 (defendant/respondent) FILE NO/S: BS No 8418 of 2019 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED EX TEMPORE ON: 6 February 2023 DELIVERED AT: Brisbane HEARING DATE: 2 February 2023 JUDGE: Cooper J ORDERS: 1. Declare that the appeal that the plaintiff proposes to bring from the order of Cooper J dated 6 December 2022 would not be an appeal only in relation to costs within the meaning of s 64 of the Supreme Court of Queensland Act 1991 (Qld). 2. Costs of the application be reserved to the Court of Appeal in the proposed appeal. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – APPEALS AS TO COSTS – OTHER PARTICULAR CASES – where a costs assessment concluded that counsel’s fees were not an allowable outlay under the Workers’ Compensation and Rehabilitation Regulation 2014 (Qld) – where an application under r 742 of the Uniform Civil Procedure Rules 1999 (Qld) for an order reviewing the assessment of costs was dismissed – where the plaintiff applies for leave pursuant to s 64 of the Supreme Court of Queensland Act 1991 (Qld) to appeal the decision dismissing the application relating to counsel’s fees to the Court of Appeal – whether the proposed appeal would be an appeal only in relation to costs within the meaning of s 64 of the Supreme Court of Queensland Act 1991 (Qld) – whether leave to appeal should be granted -- 1 of 9 -- 2 Supreme Court of Queensland Act 1991 (Qld), s 64 Uniform Civil Procedure Rules 1999 (Qld), r 742 Workers’ Compensation and Rehabilitation Regulation 2014 (Qld), Part 8, Division 2 Amos v Monsour Pty Ltd [2009] 2 Qd R 303; [2009] QCA 65, considered ASIC v Jorgensen & Ors [2009] QCA 20, considered Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421; [1972] HCA 61, cited Lessbrook Pty Ltd (in liq) v Whap [2014] 2 Qd R 102; [2014] QCA 63, followed Morrison v Hudson [2006] 2 Qd R 465; [2006] QCA 170, considered Virgtel Ltd v Zabusky [2009] 2 Qd R 293; [2009] QCA 92, considered Wiggins Island Coal Export Terminal Pty Limited v Civil Mining and Construction Pty Ltd [2021] QCA 75, considered COUNSEL: N Ferrett KC for the plaintiff C Heyworth-Smith KC for the defendant SOLICITORS: Turner Freeman Lawyers for the plaintiff Cooper Grace Ward Lawyers for the defendant Background [1] In this matter the plaintiff applied under r 742 of the Uniform Civil Procedure Rules 1999 (Qld) for an order reviewing an assessment of his costs undertaken pursuant to the terms of a release and discharge between the parties. Relevantly, the parties agreed the plaintiff’s costs were to be calculated in accordance with Part 8, Division 2 of the Workers’ Compensation and Rehabilitation Regulation 2014 (Qld). I will call this the review application. [2] On 6 December 2022, I dismissed the review application. The present application [3] On 9 January 2023, the plaintiff applied for leave pursuant to s 64 of the Supreme Court of Queensland Act 1991 (Qld) to appeal from my decision dismissing the review application. I will call this the leave application. [4] In his outline of submissions delivered on 1 February 2023, the day before the leave application was listed for hearing, the plaintiff sought leave to amend the leave application to plead further relief which was described as the primary relief sought on the application. That relief is a declaration that the proposed appeal is not one for which leave to appeal is required under s 64. [5] The application for leave to appeal under s 64 is maintained in the alternative. [6] The defendant did not oppose the grant of leave to amend the application in this manner and I granted leave to the plaintiff to file and read that amended application at the hearing on 2 February 2023. -- 2 of 9 -- 3 [7] That amended application and the submissions of the parties raise three potential issues for determination. First, whether the plaintiff is required to obtain leave under s 64 to appeal my decision to dismiss the review application. Secondly, in the event I form the view that leave under s 64 is not required, whether I should exercise my discretion to make a declaration to that effect. Thirdly, in the event I form the view that leave under s 64 is required, whether I should exercise my discretion to grant leave to appeal. Whether the plaintiff requires leave under s 64 [8] The first issue turns on the proper construction of s 64. That section provides as follows: “64 Leave required to appeal in relation to costs (1) An appeal only in relation to costs lies to the Court of Appeal from a judgment or order of the court in the Trial Division only by leave of the judge who gave the judgment or made the order, or, if that judge is not available, another judge of the court in the Trial Division.” [9] The question is whether an appeal from my dismissal of the review application is an appeal “only in relation to costs” for the purposes of s 64. [10] The proper construction of s 64 was considered by the Court of Appeal in the decision of Lessbrook Pty Ltd (in liq) v Whap.1 That case concerned an appeal from a decision of a judge of the Trial Division to set aside a decision of a registrar appointing a costs assessor. In a judgment with which the other members of the Court agreed, Muir JA approached the construction of s 64 by considering a number of statements made in authorities which addressed the legislative predecessor to s 64, that being s 253 of the Supreme Court Act 1995 (Qld). [11] The first statement was from the judgment of Keane JA in ASIC v Jorgensen & Ors2 as follows:3 “The evident purpose of s 253 of the Supreme Court Act is to impose a filter upon appeals about the exercise of the discretion to award costs where the disposition of the costs is left by law in the discretion of the judge. The evident intent of the provision is to 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.” [12] To similar effect in the case of Virgtel Ltd v Zabusky4 Keane JA said:5 1 [2014] 2 Qd R 102. 2 [2009] QCA 20. 3 Ibid [20]. 4 [2009] 2 Qd R 293. 5 Ibid 295 [10] (citations omitted). -- 3 of 9 -- 4 “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. The provisions of s 253 and its counterparts in England and Wales have long been understood as concerned with orders actually awarding costs.” [13] After considering those statements in Lessbrook, Muir JA held that:6 “There is no reason to suppose that the purpose of s 64 is any different from the purpose of s 253 of the 1995 Act as explained by Keane JA in ASIC v Jorgensen. That purpose and the historical construction of like provisions as well as the explanatory notes all suggest that ‘in relation to’ in s 64 is not apt to include a relationship which does not bear upon the exercise of a judicial discretion in making or failing to make an order as to costs.” [14] Muir JA’s reference to explanatory notes in that passage concerns the explanatory note for clause 192 of the Civil Proceedings Bill 2011 (Qld) which provides the explanation for the insertion of what ultimately became s 64. Muir JA set out that clause in paragraph [48] of Lessbrook. It relevantly stated that the new provision had been inserted: “... to provide restrictions on appeal in relation to costs ... in line with current restrictions on appeals under s 253 of the 1995 Act.” [15] The plaintiff submitted that I should apply the construction set out in paragraph [50] of Lessbrook, with the result that no leave to appeal is required in this case under s 64. [16] The defendant submitted to the contrary and advanced two arguments in support of that submission. [17] The first was that this case falls within the relationship which, on the judgment of Muir JA, attracts the operation of s 64. That is, a relationship which bears upon the exercise of a judicial discretion in making or failing to make an order as to costs. The defendant submits that such a relationship exists because this case concerns the minutiae of a costs order. [18] I cannot accept that submission. [19] Although the outcome of the review application impacted the amount of the plaintiff’s costs which WorkCover was obliged to pay under the terms of the release and discharge, no order for costs had been made in this case. Document number 25 on the court file is the assessor’s certificate. That document establishes the amount of costs WorkCover is required to pay the plaintiff, but that obligation arises from the terms of the release and discharge, not from any court order. [20] In those circumstances, I cannot see that my decision refusing to review the decision of the assessor had any bearing upon the exercise of a judicial discretion in making or failing to make an order as to costs. 6 [2014] 2 Qd R 102, 116 [50]. -- 4 of 9 -- 5 [21] Having regard to Keane JA’s explanation of the intent of s 253 in ASIC v Jorgensen, which I have cited earlier, and which Muir JA accepted as being no different to the purpose of s 64, my decision refusing to review the assessor’s decision is not one which comes within the intent of the provision. It did not involve me balancing discretionary considerations. It involved an exercise of construing provisions of Part 8, Division 2 of the Workers’ Compensation and Rehabilitation Regulation 2014 (Qld). [22] The second argument advanced by the defendant was that differences in the wording of s 253 of the 1995 Act and s 64 means that I should not follow the decision in Lessbrook. The defendant submitted that where there is a change in statutory language it can be presumed that the drafter intended the reworded provision to have a different operation to its predecessor. [23] In my respectful view, that general presumption cannot apply in respect of s 64. To do so would ignore the explanatory note for the provision which became s 64, as referred to in Lessbrook which I cited earlier. That explanatory note indicates a contrary intention, namely, to provide restrictions on appeal in relation to costs in line with restrictions that were imposed under s 253. [24] The defendant also relied upon references to an argument raised before the Court of Appeal in Wiggins Island Coal Export Terminal Pty Limited v Civil Mining and Construction Pty Ltd,7 particularly at paragraph [11], that there was a material distinction between s 253 and s 64 in that s 253 focused on the nature of the order whereas s 64 focused on the nature of the appeal and, on that basis, s 64 extended to any appeal which was only in relation to costs, including appeals concerning non- discretionary awards of costs. [25] However, while Holmes CJ described that argument as having substance, her Honour stated that was “not the occasion to reach a view as to which argument was correct as to the compass of s 64.”8 [26] That is, the argument for a construction which differed from that which Muir JA accepted in Lessbrook was not decided. [27] In those circumstances I cannot accept the defendant’s invitation to draw a distinction between the construction of s 253 and s 64. In my respectful view, I am bound to construe s 64 in accordance with the judgment of Muir JA in Lessbrook. [28] On that construction and in circumstances where, as I have already explained, my decision refusing to review the decision of the assessor had no bearing upon the exercise of a judicial discretion in making or failing to make an order as to costs, my view is that the proposed appeal from that decision would not be an appeal only in relation to costs. Consequently, in my view, leave to appeal under s 64 is not required. [29] Having reached that point the second issue is whether I should exercise my discretion to make the declaration sought by the plaintiff. 7 [2021] QCA 75. 8 Ibid [12]. -- 5 of 9 -- 6 Declaration sought by the plaintiff [30] The defendant submitted that discretionary factors weigh against the making of the declaration. [31] The first factor is that, on the defendant’s submission, there is presently no issue between the parties as to whether or not leave is required to appeal. That would only arise as an issue if the appeal is instituted without leave. [32] I cannot accept that submission in circumstances where the defendant did not object to the plaintiff amending his application to raise the issue whether leave to appeal is required and then fully argued that issue at the hearing of the amended application. [33] I accept the submission in paragraphs 15 and 16 of the plaintiff’s outline of submissions that the threshold criteria for the exercise of the discretion to make the declaration sought by the plaintiff, described in Forster v Jododex Australia Pty Ltd,9 are satisfied in this case. [34] The second discretionary factor the defendant raises is the plaintiff’s decision to argue the question whether or not leave was required to appeal before me, rather than simply filing his appeal without leave and meeting any argument from the defendant that leave was required in the conduct of that appeal. [35] I accept the submission by Mr Ferrett KC, who appeared for the plaintiff, that this course was chosen to avoid a situation where an application might be brought by the defendant in the Court of Appeal to strike out the appeal, resulting in an adjournment of the appeal to enable the leave question to return for hearing before me. That appears to be the course that was taken in the appeal referred to in Wiggins. The wording of s 64 which requires that leave be sought from the judge who gave the judgment or made the order (in this case me), or if that judge is not available another judge in the Trial Division, raises such a prospect. [36] I accept that the course the plaintiff has adopted means that if, as I have found, the defendant does not succeed on the question of whether leave is required to appeal then if it wishes to challenge my decision on that point in the Court of Appeal it would be compelled to institute its own appeal. [37] However, if that were to occur it seems to me that arrangements could readily be made for the plaintiff’s appeal and any appeal by the defendant from my decision concerning the requirement for leave to be heard together. It would avoid the prospect of the parties having to appear on more than one occasion before the Court of Appeal. [38] For completeness, I do not accept the submission set out in paragraph 27 of the defendant’s outline of submissions that it would be required to apply for leave under s 64 to appeal from my decision concerning the need for the plaintiff to obtain leave to appeal. That, in my respectful view, would be an even clearer case of an appeal in relation to a matter other than costs. [39] In those circumstances, I am not satisfied that the factors relied upon by the defendant weigh against my exercising the discretion to make the declaration sought by the 9 (1972) 127 CLR 421, 437-438. -- 6 of 9 -- 7 plaintiff in circumstances where, after full argument by the parties, I have decided the question in the plaintiff’s favour. Whether leave to appeal should be granted [40] Given the conclusion I have reached on the application of s 64, it is not strictly necessary for me to address the question whether leave should be given under that section if it operates. Nevertheless, I will address that issue in the hope that further hearings can be avoided if the defendant successfully challenges my decision that leave is not required. [41] As to the principles which apply on an application for leave to appeal, in Amos v Monsour Pty Ltd10 Fraser JA stated that:11 “… although the Court’s discretion to grant leave … is not circumscribed, leave to appeal is usually granted only where there is both a reasonable argument that there is an error to be corrected and an appeal is necessary to correct a substantial injustice to the applicant.” [42] In the following paragraph of that decision, Fraser JA referred to the traditional appellate restraint upon granting leave to appeal to challenge discretionary decisions applied with particular force to appeals concerning only costs because:12 “... too ready an inclination to grant leave in such cases would run the risk of encouraging unwarranted delay in the final resolution of litigation, the incurring of legal costs in disproportion to the value of the original subject matter of the litigation, and the unjustified generation of other public and private costs. [43] In Morrison v Hudson13 Keane JA stated:14 “Whether leave to appeal should be granted will usually depend on the primary judge’s view as to the balance of competing arguments, whether those arguments relate to matters of legal principle or disputed questions of fact, the importance and difficulty of such arguments, and, on occasion, the amount of money involved.” [44] In this case the plaintiff put forward three arguments which it would seek to advance on appeal. As I endeavoured to explain to Mr Ferrett KC during the course of the hearing, my view is that the first of those arguments is based upon a misinterpretation of my reasons for judgment. Nonetheless, I accept that the second and third proposed arguments are of sufficient cogency. [45] My decision to dismiss the review application turned on the construction of the relevant provisions of Part 8, Division 2 of the Workers’ Compensation and Rehabilitation Regulation 2014 (Qld). Given the inconsistent use of language in that regulation, which I addressed in my reasons for judgment and which forms the basis 10 [2009] 2 Qd R 303. 11 Ibid 306 [10] (citation omitted). 12 Ibid [11] (citation omitted). 13 [2006] 2 Qd R 465. 14 Ibid 470 [24]. -- 7 of 9 -- 8 for one of the proposed arguments on appeal, I did not find the process of construing those regulations a simple one. [46] The proposed arguments on appeal only go to the correctness or otherwise of that construction. There are no disputed questions of fact and no challenge to any exercise of discretion by me. [47] There was argument at the hearing of the amended application concerning the importance of the proposed arguments. [48] I acknowledge that the sum of money in issue is relatively low. Mr Ferrett KC submitted the plaintiff would receive a further amount of about $44,000 under the release and discharge if he succeeded on his appeal. Ms Heyworth-Smith KC, who appeared for the defendant, did not cavil with that figure. That raises the prospect that the costs of the appeal would be disproportionate to the value of the appeal. [49] The defendant also submitted that a decision in favour of the plaintiff on appeal would have limited application because parties in the position of the plaintiff and defendant are able to negotiate such terms as to the quantum of a settlement sum and costs as they see fit. Ms Heyworth-Smith KC suggested that the absence of this issue having arisen in the past suggests that other plaintiffs have agreed upon language which made clear that their entitlement to costs included payment of counsel’s fees. Further, that in future, now being aware of my decision dismissing the review application, future plaintiffs can insist on different language in their deeds of discharge and release if they wish to avoid the outcome for the plaintiff here. [50] To similar effect, the defendant submitted that I should not find that the plaintiff has suffered a substantial injustice if leave to appeal was not granted because, as a contracting party, he could have negotiated a fixed sum for costs or pressed for language that made it plain the costs he was to be paid included counsel’s fees. Had the defendant not accepted such an approach the plaintiff had the alternative of running the case to trial and judgment and seeking a costs order. [51] There was no material before me as to the existence or otherwise of any wider practice of using language similar to that agreed to by these parties when settling personal injury claims. Nevertheless, it does not seem fanciful to think that the construction of the relevant provisions in Part 8, Division 2 of the Workers’ Compensation and Rehabilitation Regulation 2014 (Qld) which led me to dismiss the review application might also affect other settlements. [52] As to it being open to the plaintiff to have sought different language when negotiating the discharge and release, his conduct in prosecuting the review application is consistent with him understanding that the language in fact used by the parties conferred an entitlement to payment of counsel’s fees as part of his costs. If the construction I applied in dismissing the review application is incorrect, then the plaintiff’s understanding was right and there was no need for him to use any different language when he agreed the terms of the discharge and release. [53] In those circumstances, and weighing the various matters relied on by the parties, my view is that notwithstanding the relatively modest quantum of the sum of money involved, the plaintiff would suffer a substantial injustice if any error in my -- 8 of 9 -- 9 construction is not corrected on appeal. Had I determined that leave was required to appeal by reason of s 64, I would have granted leave. Costs of the application [54] The plaintiff has submitted that the costs of the amended application concerning the question of leave to appeal should be reserved to the Court of Appeal. In circumstances where the defendant opposed both forms of relief sought in the amended application and I have found in favour of the plaintiff, I can see no reason not to make such an order. Disposition of the application [55] The orders are: 1. Declare that the appeal that the plaintiff proposes to bring from the order of Cooper J dated 6 December 2022 would not be an appeal only in relation to costs within the meaning of s 64 of the Supreme Court of Queensland Act 1991 (Qld). 2. Costs of the application be reserved to the Court of Appeal in the proposed appeal. -- 9 of 9 --