Dart & Anor v Singer [2010] QCA 185

SUPREME COURT OF QUEENSLAND CITATION: Dart & Anor v Singer [2010] QCA 185 PARTIES: DART, Frederick William (first applicant/cross-respondent) v SINGER, Clifford (respondent/cross-applicant) HAJRIDIN, Megan Ann (second applicant/cross-respondent) v SINGER, Clifford (respondent/cross-applicant) FILE NO/S: CA No 21 of 2010 CA No 22 of 2010 CA No 112 of 2010 CA No 113 of 2010 DC No 452 of 2008 DC No 453 of 2008 DIVISION: Court of Appeal PROCEEDING: Application for Extension of Time s118 DCA (Criminal) ORIGINATING COURT: District Court at Brisbane DELIVERED ON: Ex tempore judgment delivered 27 May 2010 Further Orders delivered 23 July 2010 DELIVERED AT: Brisbane HEARING DATE: 27 May 2010 JUDGES: McMurdo P, Cullinane and McMeekin JJ Judgment of the Court FURTHER ORDER: The applicants are to pay the respondent's costs of the stay applications (Dart & Anor v Singer [2010] QCA 75) to be assessed if not agreed. CATCHWORDS: PROCEDURE – COSTS – INTERLOCUTORY PROCEEDINGS – TIME TO APPLY FOR COSTS – applications for stay orders refused in earlier appeal – respondent seeks costs of stay application following the event – parties granted leave to make submissions in respect of the appropriate costs order for stay applications – respondent failed to ask for costs at time stays were refused – whether respondent now entitled to costs in respect of interlocutory application -- 1 of 3 -- 2 Dart & Anor v Singer [2010] QCA 75, cited Drew v Makita (Australia) [2008] QCA 312, distinguished Lyon v Mercer (1823) 1 Sim & St 356; 57 ER 143; [1823] Eng R 455, cited Mentors Ltd v Evans [1912] 3 KB 174, cited COUNSEL: The first applicant appeared for himself and the co-applicant R G Fryberg for the respondent SOLICITORS: The first applicant appeared for himself and the co-applicant Roberts Nehmer McKee Lawyers for the respondent [1] THE COURT: On 27 May 2010 at Townsville, this Court ordered that the applicants' (Frederick William Dart and Megan Ann Hajridin) applications to extend time to apply for leave to appeal (CA Nos 21 and 22 of 2010) be dismissed by consent and that the applicants pay the respondent's (Clifford Singer) costs of those applications on the standard basis to be assessed if not agreed. The applicants' applications for stays of the orders subject to their applications to extend time to apply for leave to appeal were refused on 30 March 2010: Dart & Anor v Singer.1 On 27 May 2010, this Court allowed the parties to make submissions in respect of those costs. [2] The respondent contends that, as the applicants were unsuccessful in their applications for stays, and as no other order was made at the time the stay applications were refused, the respondent should now have his costs of those stay applications. He cites by way of supporting authority Lyon v Mercer;2 Mentors Ltd v Evans.3 He contends it would have been inappropriate and time-wasting for him to have asked for costs of the stay applications, or even to request that they be reserved. This Court's discretionary power to award costs, the respondent contends, should be exercised in his favour in the usual way, that is, following the event. [3] The applicants resist the award of any costs against them in respect of their unsuccessful stay applications, contending that the stays, once refused, ceased to be interlocutory and became final orders. They emphasise that the respondent failed to ask for his costs of the stay applications, or even ask that they be reserved: cf Drew v Makita.4 As a result, they contend, the respondent has forfeited his right to now claim the costs of the stay applications. [4] It is clear from this Court's reasons and orders5 that the stay applications were wholly unsuccessful and largely misguided. Ordinarily, the respondent would be entitled to his costs of those applications because of the usual rule that costs follow the event. Contrary to the applicants' contentions, the orders refusing the stay applications were interlocutory orders. Stays by their very nature are interlocutory, irrespective of whether they are granted or refused, as they concern the preservation of the subject matter of the dispute between the parties pending the final order of the court. The practice has commonly developed in Queensland for parties to ask for 1 [2010] QCA 75. 2 (1823) 1 Sim & St 356; 57 ER 143. 3 [1912] 3 KB 174, 179. 4 [2008] QCA 312. 5 Dart & Anor v Singer [2010] QCA 75. -- 2 of 3 -- 3 specific costs orders relating to the determination of interlocutory orders, even if that order is to reserve the costs or for the costs to be either party's costs in the cause. But, as the respondent contends, in the absence of any costs order in respect of the applicants' unsuccessful stay applications, he would ordinarily be entitled to his costs of those interlocutory applications under the present costs order which this Court made in his favour on 27 May 2010, without any further order: Lyon v Mercer;6 Mentors Ltd v Evans.7 This Court, however, gave the parties leave to make submissions in respect of the appropriate order for the costs of the stay applications. There should, therefore, now be a further specific order that the applicants pay the respondent's costs of those stay applications8 to be assessed if not agreed. [5] Even so, the prudent approach in respect of the costs of interlocutory applications in this Court is for parties to follow the common practice in Queensland and to request costs orders, either at the time the matter is argued, or when the judgment is delivered, or in accordance with Practice Direction No 2 of 2010, para 52. This practice is preferable to avoid confusion and to encourage clarity even where the order sought is to reserve costs or to be one party's costs in the cause. FURTHER ORDER: The applicants are to pay the respondent's costs of the stay applications (Dart & Anor v Singer [2010] QCA 75) to be assessed if not agreed. 6 (1823) 1 Sim & St 356; 57 ER 143. 7 [1912] 3 KB 174, 179. 8 Dart & Anor v Singer [2010] QCA 75. -- 3 of 3 --