Attorney-General of the State of Queensland v Legal Services Commissioner

[2018] QCA 198

SUPREME COURT OF QUEENSLAND

CITATION:

Attorney-General of the State of Queensland v Legal Services Commissioner & Anor [2018] QCA 198

PARTIES:

ATTORNEY-GENERAL OF THE STATE OF QUEENSLAND
(appellant/applicant)
v
LEGAL SERVICES COMMISSIONER
(first respondent)
HAROLD WARNER SHAND
(second respondent)

FILE NO/S:

Appeal No 5758 of 2017
QCAT No 163 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal – Further Orders

ORIGINATING COURT:

Queensland Civil and Administrative Tribunal – [2017] QCAT 159

DELIVERED ON:

28 August 2018

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Morrison and McMurdo JJA and Brown J

ORDERS:

1.   The Attorney-General be given leave to apply for an order that the second respondent pay the appellant’s costs of the appeal, excluding the costs of and incidental to her application which is the subject of this judgment.

2.   The second respondent’s costs of the application which is the subject of this judgment be reserved.

3.   The second respondent have three weeks from the date of these orders to file and serve written submissions in response to the application for costs.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where the Court allowed the appellant’s appeal – where the appellant sought no order for costs in her notice of appeal or outline of submissions – where the appellant sought leave to make an application for the costs of the appeal when the judgment was delivered – where the second respondent opposed the application for leave – where the appellant was allowed to file written submissions as to why leave to apply for costs should be granted – where paragraph 52 of Practice Direction 3 of 2013 provides that parties wishing to make submissions on costs must do so in their written outlines of argument and/or orally at the hearing – whether the appellant should be granted leave to apply for costs

Attorney-General of the State of Queensland v Legal Services Commissioner & Anor; Legal Services Commissioner v Shand [2018] QCA 66, related

COUNSEL:

P Dunning QC SG, with F Nagorcka, for the appellant
T P Pincus for the second respondent

SOLICITORS:

Crown Law for the appellant
Motteram Lawyers for the second respondent

1. MORRISON JA:  I agree with the reasons of McMurdo JA and the orders his Honour proposes.

2. McMURDO JA:  This appeal was heard and decided with an appeal by the Legal Services Commissioner.  In the Commissioner’s notice of appeal and outline of argument, the costs of the appeal were sought against Mr Shand.  But no order for costs was sought in the Attorney-General’s notice of appeal or outline of submissions.

3. When the judgment was delivered, the Attorney-General sought leave to make an application for the costs of the appeal.  That was opposed by Mr Shand.  The Attorney-General was allowed to file a written submission as to why leave to apply for costs should be granted.  This Court has received that submission and a written submission in response on behalf of Mr Shand, in which leave was opposed.

4. It is submitted for Mr Shand that leave should not be given because otherwise the requirements of paragraph 52 of the Court’s Practice Direction[1] would be rendered meaningless.  That submission goes too far, but it is important that the Practice Direction be enforced where that can be done without causing an injustice in a particular case.  It must be accepted that it was by an oversight that costs were not sought.  The question is whether there is any relevant prejudice which would be caused by allowing a costs order to be sought at this stage.

   [1]Practice Direction Number 3 of 2013.

5. For Mr Shand, it is said that there is a prejudice here because the Commissioner has already been awarded his costs.  That outcome was not opposed by Mr Shand, but it is said that he should not have to pay the costs of two appeals, and that having lost the opportunity to resist a costs order on the Commissioner’s appeal, it is unfair that he be exposed to the risk that he would have to pay two sets of costs.

6. In my view, that is an argument to why he should not be ordered to pay the Attorney-General’s costs, but it is not a persuasive argument for refusing leave to the Attorney-General to seek the costs of her appeal.  I would order that:

   1.The Attorney-General be given leave to apply for an order that the second respondent pay the appellant’s costs of the appeal, excluding the costs of and incidental to her application which is the subject of this judgment.

   2.The second respondent’s costs of the application which is the subject of this judgment be reserved.

   3.The second respondent have three weeks from the date of these orders to file and serve written submissions in response to the application for costs.

7. BROWN J:  I agree with the reasons given by McMurdo JA, and the orders proposed by his Honour.