Ames Andrew Lovel v Neville Allan Baker

[2022] QCA 185

[2022] QCA 185

COURT OF APPEAL

MULLINS P
MORRISON JA
DALTON JA

Appeal No 4888 of 2022
DC No 259 of 2018

JAMES ANDREW LOVEL  Applicant

v

NEVILLE ALLAN BAKER  Respondent

BRISBANE

FRIDAY, 23 SEPTEMBER 2022

JUDGMENT

MULLINS P:  Thank you.  I will ask Justice Dalton to deliver her reasons first.

DALTON JA:  I would dismiss the application for leave to appeal and I would order that the applicant pay the respondent’s costs of and incidental to the application.

When the application for leave to appeal came on this morning, at the invitation of the Court, the applicant abandoned any claim in the District Court for punishment for contempt and so far as is necessary, this Court would give leave to amend the claim in the District Court to allow that to be carried into effect.  I would say that, while that certainly was at the invitation of the Court, there was no reason why this obviously sensible course could not have been proposed, and indeed taken, by the applicant prior to the hearing in the Court this morning.

That left a position where, what remains of the District Court proceeding is, without contest on this appeal, within the jurisdiction of the District Court.

Even without that change to the shape of the proceedings below, in my opinion the applicant for leave to appeal was unable to demonstrate substantial injustice to it as a result of any order made below.

The primary judge was right to refuse the relief sought under rule 13 of the Uniform Civil Procedure Rules, and insofar as he made any other order, it was an order adjourning the matter to the Registry. The applicant’s case was that that adjournment included an adjournment of its application to transfer the whole of the proceeding to the Supreme Court, pursuant to section 28 of the Civil Proceedings Act. Accepting that that was so, if there was any error in that course, it was an error in not striking out the proceeding, or part of it pursuant to the mandatory terms of section 28 of the Civil Proceedings Act.  That is, if there was any error, it was one which advantaged, not disadvantaged, the applicant, in those circumstances.  As I say, I cannot see that the applicant for leave to appeal has demonstrated any substantial injustice.

The costs order which I propose involves a rejection of the submission by the respondent, that costs be paid on an indemnity basis.  That application was based on a letter which was similar to, but not quite, a Calderbank offer.  It merely made an offer to compromise the proposed appeal on a different basis to the course which has been taken today.  I think those matters tell against an order for indemnity costs.  I also am of the view that the behaviour of the applicant, either below or in this Court, has not been contumelious or unreasonable, in the sense spoken about as justifying an order for indemnity costs.

MULLINS P:  I agree.

MORRISON JA:  I also agree.

MULLINS P:  So the formal orders of the Court will be: leave to the applicant to amend the further amended claim in the proceeding in the District Court, by deleting paragraph 3B and the second order will be: application for leave to appeal refused, with costs.  Thank you.

MR WILSON:  If the Court pleases, thank you.

MULLINS P:  We will adjourn.