Amos v Wiltshire [2012] QSC 283

SUPREME COURT OF QUEENSLAND CITATION: Amos v Wiltshire [2012] QSC 283 PARTIES: EDWARD AMOS (applicant) v CHRISTOPHER JAMES RAYMOND WILTSHIRE (respondent) FILE NO/S: 4406/12 DIVISION: Trial PROCEEDING: Application ORIGINATING COURT: Supreme Court DELIVERED ON: 19 September 2012 DELIVERED AT: Brisbane HEARING DATE: 28 May 2012; 14 June 2012 JUDGE: Dalton J ORDER: Application dismissed CATCHWORDS: Assessment of costs ordered by the Court of Appeal – r 771 costs to be assessed by registrar unless otherwise ordered – r 791 rehearing after decision of registrar – leave refused – delay – standing by – purely technical point COUNSEL: Mr M Steele for the applicant Mr K Boulton for the respondent SOLICITORS: Keller Nall & Brown for the applicant Sharma Lawyers for the respondent [1] There was litigation between the applicant Mr Amos and the respondent Mr Wiltshire in the District Court. There was an appeal to the Court of Appeal after a trial in the District Court – appeal number 4199/10. On 22 October 2010 the Court of Appeal made an order that Mr Amos pay Mr Wiltshire’s costs of the appeal. Those costs have been assessed by a costs assessor. Mr Amos has not paid the costs as assessed. Rather, he brings the present application pursuant to r 791 seeking to attack the appointment of the costs assessor who assessed the costs. -- 1 of 5 -- 2 [2] Mr Amos’ originating application is brought in the trial division, having been filed on 18 May 2012. It concerns the operation of the former1 wording of 771 of the UCPR: ―771 Assessment of costs of appeals The costs of appeals and all other matters brought before the Court of Appeal under this part are assessed by a registrar of the Supreme Court in Brisbane unless the Court of Appeal orders otherwise.‖ [3] There was no order otherwise in terms of the former r 771 made by the Court of Appeal in proceeding 4199/10 between Mr Amos and Mr Wiltshire. [4] In July 2011 Mr Wiltshire served a cost statement pursuant to r 705 and Mr Amos served an objection pursuant to r 706. Rule 710 provides: ―710 Application for costs assessment (1) This rule applies to a party— (a) who has served a costs statement under rule 705; or (b) on whom a costs statement under rule 705 is served. (1A)The party may, not less than 21 days after service of the costs statement, apply for a costs assessment. (2) The application must— (a) be in the approved form; and (b) be accompanied by— (i) the costs statement; and (ii) either— (A) if a notice of objection has been served on the applicant—the notice of objection; or (B) otherwise—an affidavit of service of the costs statement; and (c) if practicable— (i) nominate a particular costs assessor for the assessment; and (ii) for a costs assessor other than an assessing registrar, state the applicable hourly rate of the nominated costs assessor; and (d) if applicable, be accompanied by the nominated costs assessor’s consent to appointment to carry out the costs assessment and confirmation that, if appointed, there would be no conflict of interest. (3) The application is returnable before the registrar.‖ [5] Rule 711 provides for service of the application and rr 712 and 713 provide as follows: 1 I note that the words of r 771 have been changed so that the difficulty which has arisen in the case cannot now arise. This change occurred after I reserved my decision in this matter. The fact of the change adds support to the conclusion I reach at [12] below. -- 2 of 5 -- 3 ―712 Agreed costs assessor (1) This rule applies if the parties agree that a costs assessment be carried out by a particular costs assessor. (2) The parties may apply for a consent order under rule 666 that the particular costs assessor be appointed to carry out the costs assessment. (3) The particular costs assessor’s consent to appointment to carry out the costs assessment and confirmation that, if appointed, there would be no conflict of interest must be filed with the consent under rule 666. 713 Costs assessor if no agreement (1) This rule applies if the parties do not agree that a costs assessment be carried out by a particular costs assessor. (2) A party may either— (a) apply to the registrar for appointment of a costs assessor for the costs assessment; or (b) apply to the court for directions. (3) If an application is made under subrule (2)(a), the registrar may order the appointment of a particular costs assessor to carry out the costs assessment.‖ [6] Rules 705 and following form part of chapter 17A of the Uniform Civil Procedure Rules, entitled, ―Costs‖. That chapter deals with costs payable or assessed under an Act, the UCPR, or an order of the Court – see r 678. The phrase ―the Court‖ is apt to include both the Supreme Court in its trial jurisdiction and the Supreme Court in its appellate jurisdiction. Rule 678 goes on to provide that a costs assessor is someone appointed pursuant to r 743(l) of the rules or an assessing registrar (except in parts 4 and 5 of chapter 17A which are not relevant here). An assessing registrar is in turn defined by r 678 as a registrar appointed to assess costs by, in the Supreme Court, the Chief Justice. [7] In this matter Mr Wiltshire made application for the appointment of a registrar to assess costs pursuant to r 713. A registrar was not appointed; an appointment of a costs assessor was made by a deputy registrar on 29 November 2011. This was over the objection of Mr Amos who contended that, unless the Court of Appeal otherwise ordered, costs were to be assessed by a registrar. Mr Amos referred the deputy registrar to the former r 771. [8] In December 2011 to February 2012 solicitors for Mr Amos agitated the r 771 point unsuccessfully with both the registry of this Court and with the costs assessor who had been appointed. They said they had instructions to appeal from the decision appointing the costs assessor, and in fact obtained time to do so from the costs assessor before he proceeded with his task. In the event, no appeal was made as foreshadowed. A document entitled, ―Preliminary Notice of Objection‖, consisting of 11 pages of objections to the costs statement relied upon by Mr Wiltshire was prepared by solicitors acting for Mr Amos, and was filed in the assessment proceeding ―under protest‖. -- 3 of 5 -- 4 [9] The costs assessor appointed by the deputy registrar in this matter assessed costs and issued a certificate of assessment pursuant to r 737. The assessor assessed costs in an amount of over $132,000. [10] Rule 771 is located in chapter 18 of the UCPR entitled, ―Appellate Proceedings‖. It is preceded by a rule dealing with the availability of new trials and succeeded by rules dealing with security for costs on appeal. Rule 771 appears to be a specific provision dealing with costs in the Court of Appeal. In its terms, the former rule was not inconsistent with the provisions in chapter 17A, in that a costs assessor, as defined, includes an assessing registrar of the Court and the provisions of chapter 17A – for example r 710(2)(c)(ii) contemplate that a registrar might assess costs under chapter 17A. However, the former r 771 was inconsistent with the present practice of the Court. This is explained in Boral Window Systems Ltd v Rolfe & Anor.2 It is no longer the practice of the Court that registrars assess costs. [11] The former r 771 was in existence before sl 315 of 2007 which introduced major changes to the procedure for assessment of costs in the Supreme Court. As explained in Boral, sl 315 of 2007 introduced for the first time the concepts of a costs assessor and an assessing registrar. [12] It was submitted on behalf of Mr Wiltshire that I should find that sl 315 of 2007 impliedly repealed the requirement in the former r 771 that a registrar assess costs ordered by the Court of Appeal unless the Court of Appeal otherwise orders. However, that is not a necessary implication of the changes made by sl 315 of 2007. As noted, the former r 771 was not, in terms, inconsistent with chapter 17A. Reluctantly, I consider that the former r 771 required that costs ordered by the Court in its appellate jurisdiction were to be assessed by a registrar, unless the Court of Appeal otherwise ordered. It follows that in my view the deputy registrar was wrong to appoint a costs assessor on 29 November 2011. [13] The present application is pursuant to r 791 of the UCPR. That rule provides: ―791 Rehearing after decision of judicial registrar or registrar (1) A party to an application who is dissatisfied with a decision of a judicial registrar or registrar on the application may, with the leave of the court, have the application reheard by the court. (2) If the court grants leave, it may do so on condition, including, for example, a condition about— (a) the evidence to be adduced; or (b) the submissions to be presented; or (c) the nature of the rehearing. …‖ [14] The point was taken that a decision of a deputy registrar did not fall within r 791. I doubt that, but in any event, I have inherent jurisdiction to review the decision.3 [15] It must be a rare case where leave is not given to have an application reheard in circumstances where the original decision is considered incorrect. However, in this case there has been a gross delay by Mr Amos in bringing this application. In effect, he has stood by and waited for the costs assessor to assess the costs of the 2 [2010] QSC 246. 3 MFQ v Corry [2000] QSC 146, [9]-[10]. -- 4 of 5 -- 5 parties before bringing the application pursuant to r 791. No doubt costs have been incurred in that assessment. There is not advanced on behalf of Mr Amos any contention that the assessment which has been carried out is faulty in any way. The point taken is entirely technical. It was not suggested by either party before me that I ought to grant leave on terms so as to address these matters – see r 791(2). For those reasons I refuse leave pursuant to r 791, and would refuse to exercise my inherent jurisdiction for the same reasons. [16] I dismiss the application. I will hear the parties as to costs. -- 5 of 5 --