Baluskas & Anor v Brose [2021] QCA 251

SUPREME COURT OF QUEENSLAND CITATION: Baluskas & Anor v Brose [2021] QCA 251 PARTIES: DONNA JOY BALUSKAS (first applicant) MIGUEL BALUSKAS (second applicant) v TRACEY ANN BROSE (respondent) FILE NO/S: Appeal No 3454 of 2020 DC No 148 of 2016 DIVISION: Court of Appeal PROCEEDING: Application for Extension of Time s 118 DCA (Civil) ORIGINATING COURT: District Court at Southport – Unreported, 10 February 2020 (Muir DCJ) DELIVERED ON: Date of Orders: 11 June 2021 Date of Publication of Reasons: 23 November 2021 DELIVERED AT: Brisbane HEARING DATE: 11 June 2021 JUDGES: Sofronoff P ORDERS: Date of Orders: 11 June 2021 1. The Applicants’ application for extension of time to appeal Muir DCJ’s Order of 10 February 2020 be refused. 2. The Applicants pay Ms Blattman’s and Bennett & Philip’s costs of and incidental to this application. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – FROM INTERLOCUTORY DECISIONS – LEAVE TO APPEAL – where the applicants made an interlocutory application for costs and damages against the respondent and her legal representatives in a defamation proceeding below – where the judge dismissed the application and awarded costs against the applicants on an indemnity basis – where the applicants filed an application for extension of time in which to appeal the interlocutory orders – whether the applicants should be granted leave for an extension of time to appeal the interlocutory orders -- 1 of 3 -- 2 COUNSEL: J P Rivett (sol) for the applicants No appearance for the respondent R J Anderson QC for the interested persons, H L Blattman and Bennett & Philp SOLICITORS: Coast to Coast legal for the applicants No appearance for the respondent Carter Newell for the interested persons, H L Blattman and Bennett & Philp [1] SOFRONOFF P: The applicants were the defendants in a trial in the District Court for damages for defamation brought by the respondent. The hearing commenced on 8 October 2019 and ended on 1 November 2019 when Muir DCJ reserved judgment. [2] On 15 January 2020 the applicants, who were acting for themselves, filed an application in the District Court seeking, among other things, orders that the respondent “and her Legal Counsel” pay the applicants’ costs of the proceeding before Muir DCJ. They also sought an order that the respondent and “her Legal counsel Holly Blattman, Mark Jones and James Conville and associates” pay to the applicants $500,000 in damages. Mr Jones and Mr Conville were solicitors who acted for the plaintiff in the proceedings before Muir DCJ. Ms Blattman was the plaintiff’s counsel. Her Honour had not yet delivered judgment in that proceeding when the applicants filed their application. [3] Muir DCJ entertained the application on 10 February 2020 and dismissed it. Her Honour ordered the applicants to pay the costs of Ms Blattman and her instructing solicitors on an indemnity basis. Her Honour also ordered the application and the applicants’ written submissions be placed in a sealed envelope on the file and not to be opened without leave of the court. [4] On 28 February 2020, Muir DCJ delivered judgment in the defamation proceeding. Her Honour gave judgment for the plaintiff in the sum of $3,000 against each of the applicants respectively and granted injunctive relief. [5] On 26 March 2020, the applicants filed an application in the Court of Appeal by which they sought an extension of time in which to appeal. They sought an order striking out the respondent’s statement of claim in the defamation proceeding. They sought an order setting aside the costs order made against them on 28 February 2020. They sought costs orders against the respondent and her legal representatives. They sought a stay of certain orders of Muir DCJ. [6] On 21 April 2021, I reviewed the matter. The plaintiff’s legal representatives, against whom the applicants sought costs order and damages, sought to be heard. I will refer to them for convenience as “the lawyers”. I made orders for the filing of outlines by the parties. On 17 May 2021, the applicants filed an amended, or a further, application. They now sought leave to appeal the costs order that Muir DCJ had made on 10 February 2020 (when her Honour dismissed the applicant’s interlocutory claim for costs and damages). [7] The application came on for hearing before me on 11 June 2021 when I heard argument from Mr John Rivett of “Coast to Coast Legal”, acting for the applicants and from Mr Rob Anderson QC for the lawyers. -- 2 of 3 -- 3 [8] The respondent plaintiff informed the court that she would be taking no part in this application. The only matter that I had to decide concerned the application for an extension of time in which to appeal the costs order made on 10 February 2020 in favour of the lawyers. [9] Section 118B of the District Court of Queensland Act 1967 provides that an appeal only in relation to costs lies to the Court of Appeal only by leave of the judge who made the order or, if that judge is not available, another District Court judge. The applicants did not have leave of Muir DCJ or any other District Court judge to appeal. The Court of Appeal has no power to grant leave in such a case. The proceeding was filed more than 28 days after the order was made and, for that reason, the applicants required an extension of time. An extension of time would be futile because the application is incompetent for want of leave. Accordingly, I dismissed it at the end of the hearing. The application was always doomed to fail and, on that basis, the lawyers sought an order that the applicants pay their costs on an indemnity basis. Accordingly, I made an order in those terms. -- 3 of 3 --