Conde v Gilfoyle & Anor [2010] QCA 173

SUPREME COURT OF QUEENSLAND CITATION: Conde v Gilfoyle & Anor [2010] QCA 173 PARTIES: MILTON ARNOLDO CONDE (appellant/respondent) v BURCHILL & HORSEY LAWYERS (first respondent/first applicant) JULIE GILFOYLE (second respondent/second applicant) MYLTON BURNS (third respondent/not party to the application) McINNES WILSON LAWYERS (fourth respondent/not party to the application) FILE NO/S: Appeal No 1182 of 2010 Appeal No 11377 of 2009 Appeal No 11430 of 2009 Appeal No 14595 of 2009 SC No 13341 of 2009 SC No 8610 of 2009 SC No 8609 of 2009 DIVISION: Court of Appeal PROCEEDING: Application to Strike Out – Further Orders ORIGINATING COURTS: Court of Appeal at Brisbane Supreme Court at Brisbane DELIVERED ON: Judgment delivered 14 May 2010 Further Orders delivered on 2 June 2010 DELIVERED AT: Brisbane HEARING DATE: 22 February 2010 JUDGES: McMurdo P and Fraser JA and Peter Lyons J Judgment of the Court ORDERS: (a) The appellant pay the costs of the first and second respondents of and incidental to Appeal No 1182 of 2010; Appeal No 11377 of 2009; Appeal No 11430 of 2009; and Appeal No 14595 of 2009; (b) The costs ordered to be paid in (a) hereof and in paragraphs 1(c), 2(c), 3(c) and 4(c) of the Orders of 14 May 2010 be assessed upon the indemnity basis. CATCHWORDS: PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – ORDER FOR COSTS ON AN INDEMNITY BASIS – where the Court ordered that the appellant pay the respondents’ costs of their applications -- 1 of 3 -- 2 dismissing appeals brought by the appellant – where no order was made as to the costs of the appeals as the applications did not seek any such orders – where the respondents were given leave to make submissions as to costs in accordance with the Practice Direction – where the respondents applied for orders that the appellant pay their costs of, and incidental to, the appeals and their costs of the applications to dismiss the appeals on the indemnity basis – whether the Court’s discretion should be exercised to award costs on the indemnity basis PROCEDURE – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE – CORRECTION UNDER THE SLIP RULE – whether the Court has the discretionary power to make an order which it failed to make resulting from an accidental slip or omission of counsel pursuant to r 388 Uniform Civil Procedure Rules 1999 (Qld) Uniform Civil Procedure Rules 1999 (Qld), r 338, r 661 Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 536, cited Conde v Gilfoyle & Anor [2010] QCA 109, cited Gould v Vaggelas (1984) 157 CLR 215; [1985] HCA 85, cited L Shaddock & Associates Pty Ltd v Parramatta City Council [No 2] (1983) 151 CLR 590; [1982] HCA 59, cited R v Cripps; Ex parte Muldoon [1984] QB 686, cited Smits v Tabone; Blue Coast Yeppoon Pty Ltd v Tabone [2007] QCA 337, cited Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446, cited Symes v Commonwealth (1987) 89 FLR 356, cited COUNSEL: The appellant/respondent appeared on his own behalf R Dickson for the respondent/applicants SOLICITORS: The appellant/respondent appeared on his own behalf McInnes Wilson Lawyers for the respondent/applicants [1] THE COURT: On 14 May 2010 the Court made orders summarily dismissing various appeals brought by the appellant.1 The Court also ordered that the appellant should pay the respondents’ costs of their various applications to dismiss those appeals. No order was made as to the costs of the appeals themselves for the reason that the applications for summary dismissal did not seek any such order.2 [2] When judgment was delivered, at the request of the respondents the parties were given leave to make written submissions as to costs within seven days and otherwise in accordance with the Practice Direction.3 The respondents have since 1 Conde v Gilfoyle & Anor [2010] QCA 109. 2 Conde v Gilfoyle & Anor [2010] QCA 109 at [43]. 3 See Practice Direction 2 of 2010, at 52. -- 2 of 3 -- 3 delivered a written submission in which they apply for orders that the appellant pay their costs of and incidental to the appeals and that those costs, and their costs of the applications to dismiss the appeal, be assessed upon the indemnity basis. [3] The applications for those orders in the respondents’ submissions were served upon the appellant on 21 May 2010. He filed no submissions about costs either by the time required by this Court’s order (21 May 2010) or by the time which otherwise would have been allowed to him under the Practice Direction (28 May 2010). [4] As to the order for costs of the appeals, although the Court’s orders of 14 May 2010 appear to have been perfected by filing on that date,4 under rule 388 of the Uniform Civil Procedure Rules 1999 (Qld) (the “slip rule”) the Court retains power to make an order which it failed to make as a result of the accidental omission of counsel to ask for it,5 at least where (as here) the Court would have immediately corrected its orders once the matter was brought to its attention.6 The power is discretionary and such an order is not made as a matter of course. On the facts of this case the discretion should be exercised: the respondents have established by affidavit that the respondents’ omission to apply for costs of the appeal was attributable to an oversight, that oversight was at least to some extent explicable by the appropriate speed with which the applications to dismiss the appeals were brought, the application for costs was made immediately when judgment was delivered, and that application is plainly meritorious. [5] The respondents should be awarded their costs of the appellant’s appeals. Furthermore, the reasons for this Court’s decision on 14 May 2010 demonstrate that each of the appellants’ appeals was manifestly hopeless.7 These are appropriate cases for ordering that costs should be assessed on an indemnity basis.8 Accordingly the following further orders should now be made: (a) The appellant pay the costs of the first and second respondents of and incidental to Appeal No 1182 of 2010; Appeal No 11377 of 2009; Appeal No 11430 of 2009; and Appeal No 14595 of 2009; (b) The costs ordered to be paid in (a) hereof and in paragraphs 1(c), 2(c), 3(c) and 4(c) of the Orders of 14 May 2010 be assessed upon the indemnity basis. 4 See UCPR rule 661. 5 Gould v Vaggelas (1984) 157 CLR 215 at 275; L Shaddock & Associates Pty Ltd v Parramatta City Council [No 2] (1983) 151 CLR 590 at 597. See also R v Cripps; Ex parte Muldoon [1984] QB 686 at 695 and the decisions cited, and Symes v Commonwealth (1987) 89 FLR 356 at 357. 6 See Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446, at 453, at E to G. 7 See Conde v Gilfoyle & Anor [2010] QCA 109 at [31]-[42]. 8 See Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 and Smits v Tabone; Blue Coast Yeppoon Pty Ltd v Tabone [2007] QCA 337 at [42]-[47]. -- 3 of 3 --