Anderson v Pickles Auctions Pty Ltd - [2023] QSC 12

SUPREME COURT OF QUEENSLAND

CITATION:

Anderson v Pickles Auctions Pty Ltd [2023] QSC 12

PARTIES:

MARK DE LEIGE ANDERSON

(plaintiff/applicant)

v
PICKLES AUCTIONS PTY LTD
ABN 32 003 417 650

(defendant/respondent)

FILE NO/S:

BS No 8418 of 2019

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

6 February 2023

DELIVERED AT:

Brisbane

HEARING DATE:

2 February 2023

JUDGE:

Cooper J

ORDERS:

1. Declare that the appeal that the plaintiff proposes to bring from the order of Cooper J dated 6 December 2022 would not be an appeal only in relation to costs within the meaning of s 64 of the Supreme Court of Queensland Act 1991 (Qld).

2. Costs of the application be reserved to the Court of Appeal in the proposed appeal.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – APPEALS AS TO COSTS – OTHER PARTICULAR CASES – where a costs assessment concluded that counsel’s fees were not an allowable outlay under the Workers’ Compensation and Rehabilitation Regulation 2014 (Qld) – where an application under r 742 of the Uniform Civil Procedure Rules 1999 (Qld) for an order reviewing the assessment of costs was dismissed – where the plaintiff applies for leave pursuant to s 64 of the Supreme Court of Queensland Act 1991 (Qld) to appeal the decision dismissing the application relating to counsel’s fees to the Court of Appeal – whether the proposed appeal would be an appeal only in relation to costs within the meaning of s 64 of the Supreme Court of Queensland Act 1991 (Qld) – whether leave to appeal should be granted

Supreme Court of Queensland Act 1991 (Qld), s 64
Uniform Civil Procedure Rules 1999 (Qld), r 742
Workers’ Compensation and Rehabilitation Regulation 2014 (Qld), Part 8, Division 2

Amos v Monsour Pty Ltd [2009] 2 Qd R 303; [2009] QCA 65, considered
ASIC v Jorgensen & Ors [2009] QCA 20, considered
Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421; [1972] HCA 61, cited
Lessbrook Pty Ltd (in liq) v Whap [2014] 2 Qd R 102; [2014] QCA 63, followed
Morrison v Hudson [2006] 2 Qd R 465; [2006] QCA 170, considered
Virgtel Ltd v Zabusky [2009] 2 Qd R 293; [2009] QCA 92, considered
Wiggins Island Coal Export Terminal Pty Limited v Civil Mining and Construction Pty Ltd [2021] QCA 75, considered

COUNSEL:

N Ferrett KC for the plaintiff

C Heyworth-Smith KC for the defendant

SOLICITORS:

Turner Freeman Lawyers for the plaintiff

Cooper Grace Ward Lawyers for the defendant

Background

In this matter the plaintiff applied under r 742 of the Uniform Civil Procedure Rules 1999 (Qld) for an order reviewing an assessment of his costs undertaken pursuant to the terms of a release and discharge between the parties. Relevantly, the parties agreed the plaintiff’s costs were to be calculated in accordance with Part 8, Division 2 of the Workers’ Compensation and Rehabilitation Regulation 2014 (Qld). I will…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Anderson v Pickles Auctions Pty Ltd

Details

AGLC: Anderson v Pickles Auctions Pty Ltd [2023] QSC 12
Case: [2023] QSC 12
Decision Date: 6 February 2023

CaseChat Overview and Summary

In the case of Anderson v Pickles Auctions Pty Ltd, the plaintiff sought leave to appeal a decision dismissing an application for the review of a costs assessment under r 742 of the Uniform Civil Procedure Rules 1999 (Qld). The plaintiff's application raised the issue of whether the proposed appeal would be an appeal only in relation to costs, as defined by s 64 of the Supreme Court of Queensland Act 1991 (Qld). The court was required to determine whether the plaintiff was required to seek leave to appeal and whether the appeal would fall within the scope of s 64 of the Act.

The court considered whether the threshold criteria for exercising the discretion to make the declaration sought by the plaintiff were satisfied. The court found that the criteria were met, as the defendant did not object to the plaintiff amending his application to raise the issue of whether leave was required to appeal, and fully argued that issue at the hearing of the amended application. The court also considered the discretionary factors raised by the defendant, including the plaintiff's decision to argue the question of leave before the court, rather than simply filing the appeal without leave. The court found that this course was chosen to avoid a situation where an application might be brought by the defendant in the Court of Appeal to strike out the appeal.

The court found that the proposed appeal would not be an appeal only in relation to costs within the meaning of s 64 of the Supreme Court of Queensland Act 1991 (Qld). The court also found that the plaintiff was not required to seek leave to appeal, and that any appeal by the defendant from the court's decision concerning the requirement for leave could be heard together with the plaintiff's appeal in the Court of Appeal. The court granted the plaintiff's application for leave to appeal and reserved the costs of the application to the Court of Appeal in the proposed appeal.

Orders

Orders of the court

1. Declare that the appeal that the plaintiff proposes to bring from the order of Cooper J dated 6 December 2022 would not be an appeal only in relation to costs within the meaning of s 64 of the Supreme Court of Queensland Act 1991 (Qld).

2. Costs of the application be reserved to the Court of Appeal in the proposed appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Having reached that point the second issue is whether I should exercise my discretion to make the declaration sought by the plaintiff. Declaration sought by the plaintiff The defendant submitted that discretionary factors weigh against the making of the declaration. The first factor is that, on the defendant’s submission, there is presently no issue between the parties as to whether or not leave is required to appeal. That would only arise as an issue if the appeal is instituted without leave. I cannot accept that submission in circumstances where the defendant did not object to the plaintiff amending his application to raise the issue whether leave to appeal is required and then fully argued that issue at the hearing of the amended application. I accept the submission in paragraphs 15 and 16 of the plaintiff’s outline of submissions that the threshold criteria for the exercise of the discretion to make the declaration sought by the plaintiff, described in Forster v Jododex Australia Pty Ltd,[9] are satisfied in this case. [9](1972) 127 CLR 421, 437-438. The second discretionary factor the defendant raises is the plaintiff’s decision to argue the question whether or not leave was required to appeal before me, rather than simply filing his appeal without leave and meeting any argument from the defendant that leave was required in the conduct of that appeal. I accept the submission by Mr Ferrett KC, who appeared for the plaintiff, that this course was chosen to avoid a situation where an application might be brought by the defendant in the Court of Appeal to strike out the appeal, resulting in an adjournment of the appeal to enable the leave question to return for hearing before me. That appears to be the course that was taken in the appeal referred to in Wiggins. The wording of s 64 which requires that leave be sought from the judge who gave the judgment or made the order (in this case me), or if that judge is not available another judge in the Trial Division, raises such a prospect. I accept that the course the plaintiff has adopted means that if, as I have found, the defendant does not succeed on the question of whether leave is required to appeal then if it wishes to challenge my decision on that point in the Court of Appeal it would be compelled to institute its own appeal. However, if that were to occur it seems to me that arrangements could readily be made for the plaintiff’s appeal and any appeal by the defendant from my decision concerning the requirement for leave to be heard together. It would avoid the prospect of the parties having to appear on more than one occasion before the Court of Appeal. For completeness, I do not accept the submission set out in paragraph 27 of the defendant’s outline of submissions that it would be required to apply for leave under s 64 to appeal from my decision concerning the need for the plaintiff to obtain leave to appeal. That, in my respectful view, would be an even clearer case of an appeal in relation to a matter other than costs.

CITATION:	Anderson v Pickles Auctions Pty Ltd [2023] QSC 12
PARTIES:	MARK DE LEIGE ANDERSON (plaintiff/applicant) v PICKLES AUCTIONS PTY LTD ABN 32 003 417 650 (defendant/respondent)
FILE NO/S:	BS No 8418 of 2019
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED EX TEMPORE ON:	6 February 2023
DELIVERED AT:	Brisbane
HEARING DATE:	2 February 2023
JUDGE:	Cooper J
ORDERS:	1. Declare that the appeal that the plaintiff proposes to bring from the order of Cooper J dated 6 December 2022 would not be an appeal only in relation to costs within the meaning of s 64 of the *Supreme Court of Queensland Act 1991* (Qld). 2. Costs of the application be reserved to the Court of Appeal in the proposed appeal.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – APPEALS AS TO COSTS – OTHER PARTICULAR CASES – where a costs assessment concluded that counsel’s fees were not an allowable outlay under the Workers’ Compensation and Rehabilitation Regulation 2014 (Qld) – where an application under r 742 of the Uniform Civil Procedure Rules 1999 (Qld) for an order reviewing the assessment of costs was dismissed – where the plaintiff applies for leave pursuant to s 64 of the Supreme Court of Queensland Act 1991 (Qld) to appeal the decision dismissing the application relating to counsel’s fees to the Court of Appeal – whether the proposed appeal would be an appeal only in relation to costs within the meaning of s 64 of the Supreme Court of Queensland Act 1991 (Qld) – whether leave to appeal should be granted Supreme Court of Queensland Act 1991 (Qld), s 64 Uniform Civil Procedure Rules 1999 (Qld), r 742 Workers’ Compensation and Rehabilitation Regulation 2014 (Qld), Part 8, Division 2 Amos v Monsour Pty Ltd [2009] 2 Qd R 303; [2009] QCA 65, considered ASIC v Jorgensen & Ors [2009] QCA 20, considered Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421; [1972] HCA 61, cited Lessbrook Pty Ltd (in liq) v Whap [2014] 2 Qd R 102; [2014] QCA 63, followed Morrison v Hudson [2006] 2 Qd R 465; [2006] QCA 170, considered Virgtel Ltd v Zabusky [2009] 2 Qd R 293; [2009] QCA 92, considered Wiggins Island Coal Export Terminal Pty Limited v Civil Mining and Construction Pty Ltd [2021] QCA 75, considered
COUNSEL:	N Ferrett KC for the plaintiff C Heyworth-Smith KC for the defendant
SOLICITORS:	Turner Freeman Lawyers for the plaintiff Cooper Grace Ward Lawyers for the defendant