Allen v Ruddy Tomlins & Baxter [2019] QCA 288

SUPREME COURT OF QUEENSLAND CITATION: Allen v Ruddy Tomlins & Baxter [2019] QCA 288 PARTIES: KIM MARIE ALLEN (applicant) v RUDDY TOMLINS & BAXTER (respondent) FILE NO/S: Appeal No 3998 of 2018 DC No 367 of 2008 DIVISION: Court of Appeal PROCEEDING: Application for Leave s 118 DCA (Civil) – Further Order ORIGINATING COURT: District Court at Townsville – Unreported: 21 March 2019 (Durward SC DCJ) DELIVERED ON: 6 December 2019 DELIVERED AT: Brisbane HEARING DATE: Heard on the Papers JUDGES: Philippides and McMurdo JJA and Henry J ORDER: The respondent pay the applicant’s costs on a standard basis of and incidental to the application for leave to appeal and appeal; and the proceedings in the District Court commenced by application filed 26 September 2008 and the application filed 6 November 2017, including the costs reserved by the order of 27 November 2017 and 21 March 2018. CATCHWORDS: APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where the applicant successfully appealed against a judgment of the District Court – where the applicant submitted that costs should be awarded on the indemnity basis – where the respondent submitted that costs should not follow the event – where the respondent submitted that its argument was not fanciful or without merit – whether costs should be awarded on the indemnity basis – whether costs should follow the event Limitation of Actions Act 1974 (Qld) Supreme Court Act 1995 (Qld), s 221 Uniform Civil Procedure Rules 1999 (Qld), r 681, r 703(1), r 743H, r 766(1) Alborn & Ors v Stephens & Ors [2010] QCA 58, cited Sochorova v Commonwealth of Australia [2012] QCA 152, cited -- 1 of 4 -- 2 COUNSEL: S Hartwell for the applicant R B Dickson for the respondent SOLICITORS: Corporate First Lawyers for the applicant CBC Lawyers for the respondent [1] PHILIPPIDES JA: On 28 May 2019, the applicant, Kim Allen, was granted leave in this Court to appeal against orders made in the District Court on 21 March 2018 that the respondent, Ruddy Tomlins & Baxter, a firm of solicitors, was not barred by operation of the Limitation of Actions Act 1974 (Qld) (the LAA) from recovering its legal costs from her. The Court (by a majority) set aside the District Court order and ordered that written submissions as were to costs to be provided. [2] The applicant submits that costs should follow the event, relying on s 221 of the Supreme Court Act 1995 (Qld); r 681, r 703(1) and r 766(1)(a) and (d) of the Uniform Civil Procedure Rules 1999 (Qld) (the UCPR).1 Essentially, costs follow the event unless the Court orders otherwise (see r 681) and even a party that has not been entirely successful “is not inevitably or even, perhaps, normally deprived of some of its costs”.2 [3] The applicant also seeks orders that the respondent pay the applicant’s costs on an indemnity basis of and incidental to: the application for leave to appeal and appeal; and the proceedings in the District Court commenced by application filed 26 September 2008 and the application filed 6 November 2017, including the costs reserved by the orders of 27 November 2017 and 21 March 2018. Costs should follow the event [4] The parties’ dispute concerned a bill rendered to the applicant upon the termination of its retainer, to which the applicant objected, filing an application for a costs assessment. bThe respondent had, on 26 November 2008, submitted a revised bill in the amount of $139,822.12. Some eight years later in July 2017, the costs assessor filed a certificate in the sum of $83,031.62. [5] In November 2017, the respondent had the matter listed pursuant to r 743H of the UCPR.3 It was agreed that an application by the applicant raising the “limitation period point” be heard as a “threshold issue”. That issue was determined in favour of the respondent and was the subject of orders on 21 March 2018, which included the adjournment of the balance of the application for further hearing and reserved costs of that part of the application. [6] The applicant has submitted that since her argument was largely accepted by the majority in allowing the appeal, there is nothing to displace the general rule in r 681 and costs should follow the event. It is thus argued that the respondent should pay the costs of the proceedings in the Court of Appeal and the costs reserved by the order 1 See summary in Sochorova v Commonwealth of Australia [2012] QCA 152 at [8] to [13] per Margaret Wilson J (with whom Muir and Fraser JJA agreed). 2 Alborn & Ors v Stephens & Ors [2010] QCA 58 at [8] per Muir JA (with whom Holmes JA, as her Honour then was, and Daubney J agreed). 3 On 24 November 2017, the primary judge made directions as to disclosure of material and listing of the threshold questions for hearing on 13 December 2017. Costs were reserved. -- 2 of 4 -- 3 of 21 March 2017. Further, as there is no utility in what remains of the proceedings below, pursuant to r 766(1)(a) of the UCPR, costs of those proceedings, including the reserved costs of 24 November 2017, should be ordered to be paid by the respondent. [7] The respondent contended that this was a case where the Court should exercise its discretion pursuant to r 681 to “order otherwise” and hold that there be no order as to costs. In making that submission, the respondent relied on an offer that had been made to the applicant in July 2008,4 to settle the issue of costs for $83,169.31, which it was said was unreasonably rejected. In that regard, it was submitted that there was a significant delay in the cost assessor performing the assessment and issuing the certificate which was a matter “completely out of the control” of the respondent. The respondent submitted that the reason for it now being precluded from claiming any costs and outlays in relation to the legal work performed was that it had taken a view of the law that, since District Court proceedings were already on foot, it was “not required to commence alternative proceedings to protect itself from the operation of the [LAA]”. The respondent submitted that its interpretation of the law was not one that was fanciful or without merit and was one that accorded with the decision of the District Court judge and the minority view in this Court. [8] The fact that the respondent’s position was not an unarguable one does not, in my view, warrant an order that costs should not follow the event and that there be no order as to costs. The respondent was unsuccessful in the final outcome and should be in no different position from any other litigant who argues its case unsuccessfully. Nor do I consider that any injustice follows from the usual order being made because the respondent will be unable to claim any professional costs and outlays for the work performed. That is a consequence of the application of the LAA and the respondent’s failure to safeguard its position by bringing appropriate proceedings within time, a precautionary step that was entirely within its control but because of the erroneous view taken, was not done. [9] The respondent also contended that if it was to be ordered to pay the applicant’s costs, those costs should be restricted to costs incurred by the applicant that related to the limitation issue at first instance and on appeal. It was submitted that, in her application of 6 November 2017, the applicant had not only sought an order that the proceedings be stayed permanently because of the limitation point, but other orders including that the certificate be set aside, an application to review the cost assessor’s decision be extended and that the conduct of the cost assessor and the respondent be reviewed on a number of new grounds, which were not determined but in respect of which costs were incurred. Some of those costs related to what is said to be scandalous or oppressive allegations for which the applicant should not be paid her costs. I do not consider that it is appropriate in this case to restrict the order for costs to those concerned with the limitation point given that issue was raised at an early period and that it is not appropriate to make findings as to the merit of the other remedies sought by the applicant. Moreover, the limitation point was a central one and went to the very issue identified as essential to the validity of the entitlement claimed by the respondent and the entirety of the determination at first instance and on appeal. [10] As to the applicant’s submission that costs should be ordered to be assessed on the indemnity basis, I do not consider that the respondent’s conduct evidenced some special or unusual circumstance which would warrant that approach. While the 4 Respondent’s submissions para 4. -- 3 of 4 -- 4 respondent made an offer to settle, the applicant was vindicated in its approach in not accepting it. But although the position argued by the respondent failed on appeal, it was not one that was so unmeritorious that its agitation could be regarded as unreasonable or vexatious. It was one that the respondent was entitled to ventilate, notwithstanding that the applicant’s solicitors alerted them to the deficiency in the approach concerning the limitation issue. [11] The orders I would make are that the respondent pay the applicant’s costs on a standard basis of and incidental to the application for leave to appeal and appeal; and the proceedings in the District Court commenced by application filed 26 September 2008 and the application filed 6 November 2017, including the costs reserved by the order of 27 November 2017 and 21 March 2018. [1] McMURDO JA: This Court, by majority, has held that the respondent is barred by a limitation period from recovering for the work which the respondent undertook for the applicant, the value of which has been assessed, under the supervision of the District Court, in the sum of $83,031.62. The recovery of those costs was not statute barred in March 2009, when the costs assessor filed an “interim decision” in the District Court, after which apparently nothing happened in the proceeding until eight years later, when the assessor filed his final certificate on 21 July 2017. Within that period, the majority have held, the recovery of the costs became statute barred. In those circumstances, I see no basis for awarding the applicant her costs before 21 July 2017. [2] On 12 October 2017, the registrar of the District Court made orders for costs pursuant to the assessor’s certificate. On 6 November 2017, the applicant filed an application seeking an order that the proceedings (which she had commenced) be permanently stayed, upon the basis that the recovery of the costs was statute barred. That application was ultimately successful, and she should have her costs of it in the District Court, as well as the costs of her application for leave to appeal and her appeal in this Court. Those costs should be assessed upon the standard basis. [3] However, in that application filed on 6 November 2017, a number of alternative orders were sought, for which she apparently provided voluminous material and raised irrelevant and scandalous matters. Her claims in those respects were all the more surprising for the fact that, previously, the only issue between the parties had been one of the proper quantification of work which, undoubtedly, the respondent had performed for her. The applicant should not have her costs of those alternative claims. [4] I would order as follows: 1. The respondent pay the applicant her costs of the application for leave to appeal, and the appeal, on the standard basis. 2. The respondent pay to the applicant her costs of the proceeding in the District Court, from and after 21 July 2017, but limited to the issue of whether the recovery of the assessed costs was statute barred. [5] HENRY J: I have read the reasons of Philippides JA. I agree with those reasons and the order proposed. -- 4 of 4 --