Di Carlo v Dubois & Ors [2004] QSC 41

SUPREME COURT OF QUEENSLAND CITATION: Di Carlo v Dubois & Ors [2004] QSC 041 PARTIES: SALVATORE DI CARLO (plaintiff/ applicant) v DR PHILIP JAMES DUBOIS (first defendant/ first respondent) PHILIP DUBOIS (MEDICAL) PTY LIMITED (ACN 010 673 864) (second defendant/ second respondent) DENNIS RICHARD OSBORNE, PHILIP JAMES DUBOIS, STEPHEN BENNETT KELLER, PIYOOSH KOTECHA, GARY EDWARD O’ROURKE, MARK JAMES READY, PETER STOREY, CHARLES BRUCE LEIBOWITZ, PETER CHARLES LUSH, NICHOLAS DAUNT, DAVID ALEXANDER NOBLE AND PETER FERGUS LEGH trading under the firm name of style of QUEENSLAND X-RAY SERVICES (third defendant/ third respondent) DR MICHAEL CORONEOS (fifth defendant/ fifth respondent) FILE NO: SC No 1281 of 1996 DIVISION: Trial Division PROCEEDING: Application for leave to appeal against costs ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 10 March 2004 DELIVERED AT: Brisbane HEARING DATE: 4 March 2004 JUDGE: Mackenzie J ORDER: The application for leave to appeal against the costs orders is refused, with costs of the first, second and third defendants to be assessed. No order as to costs as between the plaintiff and the fifth defendant. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – COSTS ORDERS – leave to appeal required – principles for granting leave – whether application for leave after expiry of appeal period competent -- 1 of 5 -- 2 Emanuel Management Pty Ltd (in liq) v Foster’s Brewing Group Ltd [2003] QSC 484; SC No 3723 of 1999, 17 December 2003, considered Jiminez v Jayform Contracting Pty Ltd [1993] 1 Qd R 610, cited Johns v Johns [1988] 1 Qd R, cited Re Golden Casket Art Union Office [1995] 2 Qd R 346, cited Thorpe Nominees Pty Ltd v Henderson & Lahey [1988] 2 Qd R 216, cited Supreme Court Act 1995 (Qld), s 253, s 254 Uniform Civil Procedure, r 747, r 748 COUNSEL: N M Cooke QC for the plaintiff P L Feely for the first, second and third defendants The fifth defendant did not wish to appear SOLICITORS: Baker Johnson for the plaintiff Flower and Hart for the first, second and third defendants [1] MACKENZIE J: A costs order in these proceedings was made on 18 December 2003. An appeal had been filed against the primary orders in the proceedings and when that appeal came on in the Court of Appeal on 24 February 2004 the issue of appealing against the costs orders arose. It appears that the reasons for the costs order delivered on 18 December 2003 by me were included in the record but there was no notice of appeal. The question was raised whether, if the appeal against the primary orders was dismissed, my leave would be necessary to appeal against the costs order. [2] When the application was brought before me, it became apparent that the fifth defendant, who would be affected by one aspect of the application, had not been served. The matter was stood down and, later in the day, he sent a fax saying that he did not wish to appear. [3] The starting point in the argument is the Supreme Court Act 1995 which, for relevant purposes, reproduced ss 9 and 10 of the Judicature Act (40 Vic No 6). Section 254 of the Supreme Court Act 1995, which provides that an appeal lies to the Court of Appeal from every order of a judge, is modified in respect of orders as to costs only which by law are left to the discretion of the judge. In respect of those orders, s 253 provides that they are subject to appeal only if the judge making the order gives leave. According to the currently applied principle, which is of long standing, if the costs order below is not subject to consequential revision upon the judgment appealed against being set aside or varied, leave from the trial judge is necessary to challenge the costs order. (Thorpe Nominees Pty Ltd v Henderson & Lahey [1988] 2 Qd R 216; Re Golden Casket Art Union Office [1995] 2 Qd R 346). [4] Although there will be occasional cases where leave to appeal becomes otiose because the appeal against the substantive judgment succeeds, with consequent setting aside or varying of the order for costs, the requirement that leave be obtained in case the substantive appeal fails is logically based. The appeal in a case where consequential setting aside or varying of the costs order occurs is conceptually different from an appeal against an exercise of discretion. Once the appellant must establish grounds for setting aside a discretionary judgment, there is no reason to -- 2 of 5 -- 3 distinguish between a case where the issue becomes of that kind because a substantive appeal is dismissed and one where no issue is taken with the substantive judgment but it is alleged that the costs order is erroneous in principle. [5] The requirement that leave be obtained implies, firstly, that leave is not given merely for the asking. By analogy with other instances where leave to appeal is necessary, a plausible basis for arguing that there are some prospects of success must be demonstrated. Secondly, because the judgment as to costs is a discretionary judgment it would be necessary to identify some prospect of success on an argument that there was a demonstrable error in principle, or on an argument that the order was so unreasonable that it could not have been properly made. [6] There is also another issue which arises from a view expressed by Chesterman J in Emanuel Management Pty Ltd (in liq) v Foster’s Brewing Group Ltd [2003] QSC 484 in reasons delivered following a hearing on 17 December 2003. The point is whether leave can be given by a judge of the Trial Division if the application to the trial judge is made outside the period of 28 days prescribed by UCPR 748 for appealing to the Court of Appeal. UCPR 748 also provides for extension of that period, but only by the Court of Appeal. [7] Chesterman J noted that there was no direct authority on the issue. He observed that s 253 of the Supreme Court Act 1995 did not of itself prescribe a time within which an application for leave should be made. UCPR 747 provides that where leave is necessary for the institution of an appeal, the notice of appeal must identify the order giving leave and the specific question upon which leave to appeal has been granted. He said that since an application made after 28 days would be one for leave to apply for an extension of time or for leave to appeal conditional upon the Court of Appeal extending time within which to appeal, an application brought after 28 days was not one for leave to appeal. [8] He referred to Johns v Johns [1988] 1 Qd R 138 where an appeal from the District Court could only be brought by leave. The relevant rule of the Supreme Court then operative prescribed that an appellant, by leave or by right, should institute the appeal within the time prescribed by the District Court rule. Williams J giving what was effectively the judgment of the court, said that leave had to be obtained before institution of the appeal. Otherwise it was not an appeal by leave. Chesterman J pointed out that Jiminez v Jayform Contracting Pty Ltd [1993] 1 Qd R 610 expressly adopted that view. Chesterman J said that because, in the case of a costs order, leave could only be given by the judge who made the order, the expedient of the Court of Appeal giving both an extension of time and leave to appeal was not operative. Since an application for leave to appeal must occur first, if it was not made within 28 days of making the costs order any appeal instituted pursuant to the leave would be incompetent. He inferred that the appeal contemplated by s 253 was one which was competent, that is to say, one that could be brought within the prescribed time. [9] It was not necessary for Chesterman J to finally decide the question. In any event, despite his doubts, he gave the applicant, a non-party against whom costs had been awarded, leave to appeal limited to the ground that the plaintiffs succeeded in their appeal against the substantive orders made. The judgment in the action had been appealed against and he took the view that should the plaintiff succeed, then the costs orders would be varied. He took the view that it would be unjust if the -- 3 of 5 -- 4 plaintiffs succeeded on the appeal but the costs against the applicant, not being a party to the appeal, could not be disturbed. Chesterman J then went on to deal with the broader aspects of the application which had been brought by the unsuccessful plaintiffs and the non-party which had been ordered to pay costs as well. He refused the application in all respects except the limited one mentioned above because delay in applying for leave had been inadequately explained and no cogent reasons had been given for disturbing the costs order. [10] The conclusion to be drawn is that the proper sequence of events is that leave to appeal should be obtained from the judge making a costs order before the notice of appeal is filed. The only issue is whether, if the application for leave to appeal is not made until the period prescribed for the appeal to be instituted has expired (and has not been extended by the Court of Appeal), leave to appeal may be granted. [11] Analysis of the various steps suggests that where the period of twenty eight days has elapsed from the delivery of judgment, a person who wishes to institute an appeal after that time logically should apply initially to extend the time within which to appeal. In the present case, that can only be done by the Court of Appeal; but if the application is granted, the extended time period allowed becomes the time within which the appeal must be instituted. In considering whether or not to grant an extension of time prospects of success and explanation for delay are relevant factors. [12] In the phase where the question is whether leave to appeal should be granted, it is less clear that delay is a relevant factor for the trial judge. Firstly, that aspect would be addressed by the Court of Appeal in deciding to allow an extension of time within which to appeal. Secondly, in deciding whether leave to appeal should be granted, the focus is ordinarily on the merits or justice of the case. It would only be if the concept of granting leave to appeal, in the particular context under consideration, implies that both prospects of success on the merits and prospects of obtaining an extension of time within which to appeal are rolled up in it that the latter becomes a relevant factor. [13] In my view, the proper construction is that, on an application for leave to appeal to the judge who made the costs order, the focus should be on the prospects of success in having the discretionary judgment set aside or varied. The question whether an extension of time within which to appeal should be granted should be left within the province of the Court of Appeal. The inconvenience in this division of responsibilities is that prospects of success is an issue at each stage. [14] There are two ways of approaching the question. The first, which adopts Chesterman J’s reasoning, would be to require the question of extension of time within which to appeal to be determined first by the Court of Appeal. If an extension is granted until a specified time subject to leave of the trial judge being granted within that time, the trial judge would consider whether leave should be granted. If an extension were refused by the Court of Appeal for one or both of the reasons of lack of reasonable prospects of success or delay, the need to apply for leave to the trial judge would disappear. [15] The second would be to obtain leave from the trial judge and then seek an extension of time from the Court of Appeal. For the reasons given by Chesterman J, this -- 4 of 5 -- 5 seems a less logical sequence, even if leave to appeal were conditional on a successful application for leave to extend time. [16] In my view, the better view is that unless an application for leave to appeal against a costs order is made and determined within the 28 days allowed for instituting an appeal, a judge who has made a costs order does not have power to grant leave to appeal, at least unconditionally, unless the applicant has successfully obtained an extension of time within which to appeal from the Court of Appeal, and the application to the judge who made the order is made and determined before the extension of time expires. [17] The costs orders against which leave to appeal is sought are that: (a) each party bear their own costs of the first trial; (b) a Bullock order requiring the fifth defendant to pay to the plaintiff costs that the plaintiff was required to pay to the first, second and third defendants be refused. [18] There was only the most rudimentary argument on behalf of the plaintiff as to why leave to appeal was justified. It did not descend to particularity as to how it was to be argued that the orders were vulnerable to attack. No errors in principle were identified; it was not suggested that they were so unreasonable that they could not properly be made. At the most, it seemed to be suggested that other orders might have been made. The respondent first, second and third defendants submitted that there was nothing to suggest any manifest error of law or other relevant error capable of showing the discretion had miscarried. [19] In the circumstances, the application for leave is refused. Had I been persuaded that there were reasonable prospects of success, I may have been disposed to make an order, in the interests of avoiding the need to apply to the Court of Appeal for an extension of time and appearing again before me to seek leave to appeal, with the following elements: An order giving leave conditional upon: (a) the Court of Appeal determining that leave to appeal could be granted notwithstanding that the appeal period had expired and not been extended, prior to an application for leave to the Court of Appeal for an extension of time within which to appeal; (b) if so, the applicant filing and serving an application for extension of time within seven days; (c) the applicant obtaining an extension of time within which to appeal. Orders [20] The orders are as follows: The application for leave to appeal against the costs orders is refused, with costs of the first, second and third defendants to be assessed. No order as to costs as between the plaintiff and the fifth defendant. -- 5 of 5 --