Enkelmann v Stewart [No 2]

Case [2023] QCA 198

SUPREME COURT OF QUEENSLAND

CITATION:

Enkelmann & Ors v Stewart & Anor [No 2] [2023] QCA 198

PARTIES:

PETER ROBERT ENKELMANN
(first appellant)
MARGARET ANNE ENKELMANN
(second appellant)
PREEMA PARTNERSHIP
(third appellant)
v
MICHAEL ALLAN STEWART
(first respondent)
ANDREA ISABEL STEWART
(second respondent)

FILE NO/S:

Appeal No 6145 of 2023
SC No 12984 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Miscellaneous Application – Civil

ORIGINATING COURT:


Supreme Court at Brisbane – [2023] QSC 111 (Williams J)

DELIVERED ON:

29 September 2023

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Bond and Flanagan JJA and Bradley J

ORDERS:

1.   The application for leave to make further submissions on costs is refused.

2.   The appellants are to pay the respondents’ costs of the application.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COURT SUPERVISION – IRREGULARITIES AND NON-COMPLIANCE WITH RULES – where the appellants sought to make submissions on costs after the hearing of the substantive appeal – where the appellants neglected to seek the necessary leave to do so – whether the justice of the case favoured an exercise of discretion to permit the proposed arguments to be made

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW EVENT – where the substantive appeal was unsuccessful – where the appellants succeeded on issues or points ultimately not determinative of their legal rights – where the appellants sought re-apportionment of costs based on their “success by issue” – whether there were special or exceptional circumstances to warrant depriving the successful respondent of its costs

Autodesk Inc v Dyason [No 2] (1993) 176 CLR 300; [1993] HCA 6, cited
Davies v Davies & Anor (No 1) [2019] QSC 293, cited
De L v Director-General, NSW Department of Community Services [No 2] (1997) 190 CLR 207; [1997] HCA 14, applied
Gallagher v Boylan [2013] 1 Qd R 204; [2012] QCA 159, cited
Gould v Vaggelas (1985) 157 CLR 215; [1985] HCA 75, cited
L Shaddock & Associates Pty Ltd v Parramatta City Council [No 2] (1982) 151 CLR 590; [1982] HCA 59, cited
Mackellar Mining Equipment Pty Ltd v Thornton (2019) 367 ALR 171; [2019] QCA 77, cited
Mio Art Pty Ltd v Macequest Pty Ltd & Ors (No 2) [2013] QSC 271, considered
Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd [No 2] (1988) 62 ALJR 151; [1988] HCA 2, cited
Speets Investment Pty Ltd v Bencol Pty Ltd (No 2)[2021] QCA 39, applied
Spotlight Pty Ltd v NCON Australia Ltd (2012) 46 VR 1; [2012] VSCA 232, cited
Thakral Fidelity Pty Ltd v Commissioner of Stamp Duties (No 2) [2001] 1 Qd R 428; [1999] QCA 367, cited
Thompson v Macmillan[2023] QCA 183, cited
Todrell Pty Ltd v Finch (No 2) [2008] 2 Qd R 95; [2007] QSC 386, distinguished
Westpac Banking Corporation & Anor v Heslop…

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AGLC
Enkelmann v Stewart [No 2] [2023] QCA 198
Case
[2023] QCA 198
Decision Date

CaseChat Overview and Summary

In Enkelmann v Stewart [No 2], the appellants sought to argue for a re-apportionment of costs after the substantive appeal had been heard. They contended that they had succeeded on issues or points that were ultimately not determinative of their legal rights. The court had to determine whether the appellants were entitled to make further submissions on costs without having sought leave, as per the Practice Direction. Additionally, the court considered whether the justice of the case warranted a re-apportionment of costs, given the appellants' partial success on their grounds of appeal.

The legal issues revolved around whether the appellants could make submissions on costs after the substantive appeal without obtaining leave, and whether there were special or exceptional circumstances to justify a re-apportionment of costs despite the appeal being unsuccessful. The court had to balance the procedural requirement of obtaining leave against the justice of the case, particularly in light of the appellants' partial success.

In its reasoning, the court acknowledged that the Practice Direction was designed to regulate the process of making submissions on costs after a judgment is published. However, the court noted that the appellants' failure to seek leave was due to an oversight by counsel. The court also considered the appellants' argument that their grounds of appeal had broader implications for litigants involving expert evidence. Despite the appellants' respectable argument, the court found that the justice of the case did not require the appellants to demonstrate exceptional circumstances, as the discretion to permit further submissions on costs is untrammelled but must be exercised judicially.

The court refused the application for leave to make further submissions on costs and ordered that the appellants pay the respondents' costs of the application. This decision underscored the importance of procedural compliance while also recognising the need to exercise discretion judicially.

Orders

Orders of the court

1. The application for leave to make further submissions on costs is refused.

2. The appellants are to pay the respondents’ costs of the application.

Background

Background to the litigation

On 8 August 2023, the appellants sought “reconsideration of the question of costs.” These reasons explain why the Court has refused the appellants’ application.Background The appellants appealed from an order that they disclose certain solicitors’ file notes of oral comments made by an expert witness in conference with their solicitors and counsel. The appellants’ grounds were that the learned primary judge had erred in finding that legal professional privilege in the solicitors’ file notes had been abrogated by r 212(2) of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) and had also erred in the alternative finding that the appellants had waived their privilege by disclosing the expert’s reports before the trial. The respondents joined issue with the appellants, opposing the appeal and submitting the primary decision should be affirmed on alternative grounds. In reasons published on 1 August 2023, the appellants’ grounds of appeal were upheld but the respondents’ contention that the appellants had waived the relevant privilege at the trial was also upheld. So, the appeal was dismissed. The respondents had raised the ultimately determinative point in their Notice of Contention. The respondents did not file their Notice within the time limited by the rules. They sought and obtained the Court’s leave to file it at the commencement of the hearing on 17 July 2023. The appellants did not oppose leave. From that time, the appellants were exposed to the risk that they might not succeed in the appeal, even if they persuaded the Court of the soundness of their grounds of appeal. The appellants had been aware of this possibility from 23 June 2023, when the respondents served their Notice, about 24 days before the appeal was heard. As mentioned, in their written outline of argument the appellants sought an order that costs should follow the event. At that time, the respondents had not given notice of their ultimately successful contention. But they had by the time the appellants filed their reply outline on 30 June 2023 and the appellants did not seek a different costs order. No submission to the contrary was made at the hearing of the appeal on 17 July 2023, nor was leave sought to make further submissions.Appellants’ submissions In written submissions settled by counsel, the appellants submit, and we would accept, that their failure to comply with the practice direction in relation to the making of further submissions on costs was due to an oversight by counsel. The appellants submit they have a “respectable argument” for an order other than the extant order that costs follow the event. Their argument has two parts. The first part is that the proper interpretation of r 212(2) had direct implications for both parties in the proceeding, who had engaged at least six different experts to give evidence at the trial. Both their grounds of appeal are said to have been of significance to litigants in other proceedings involving expert evidence. The appellants say they succeeded on the points of importance to the parties in the proceeding and, perhaps, to other litigants generally. The second part of their costs argument is that most of the written submissions and the hearing concerned the appellants’ grounds of appeal. Little time or effort was directed to the respondents’ contention about waiver at the trial.

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

The present discretion is untrammelled although it must be exercised judicially, having regard to the considerations which are relevant to it. Observations made in previous cases in different contexts cannot be regarded as laying down rigid rules confining its exercise. Such observations may be better regarded as emphases made in particular cases in response to particular considerations which justified such emphases. Thus in De L v Director-General, NSW Department of Community Services [No 2], the High Court referred to its undoubted jurisdiction to re-open its judgments or orders, where the interests of justice so required; acknowledged statements in previous cases that a heavy burden was cast upon an applicant for re-opening to show that such an exceptional course was required “without fault on his part”, that is “without the attribution of neglect or default to the party seeking reopening”, but nevertheless concluded the case was a proper one for re-opening despite the fact that there had been fault on the part of the applicant.[10] We do not accept the submission that in the present context, the justice of the case requires the appellants to demonstrate exceptional circumstances (let alone lack of fault), as though that was some form of condition governing the exercise of the present discretion.[10]De L v Director-General, NSW Department of Community Services [No 2] (1997) 190 CLR 207 at 215-216.Consideration of leave In the trial division when a judge makes determinative orders and publishes reasons for judgment, a party may advance an application to the judge for a particular order in relation to costs. The practice of this Court is that its judgments are published in open court by a single judge of appeal who may or may not have formed part of the coram which decided the appeal. No costs application can conveniently be made to that judge. The Practice Direction is an attempt to regulate that position so that the Court will know whether it should deal with costs in its judgment on the merits or give the parties an opportunity to be heard on costs. Thus it is commonplace in circumstances analogous to the present that a party in the appellants’ position advances a submission at the hearing that they would like to be heard on the question of costs after the Court has decided the appeal. The Practice Direction contemplates and approves that course. By the orders the Court makes when it publishes its judgment the Court will then determine the merits of the appeal and give the parties the opportunity to be “heard” on the question of costs by making directions permitting them to deliver further written submissions on costs. There is no doubt that if such a submission had been made in the present case, that opportunity would have been afforded the parties. The result would have been that the Court would not have dealt with costs in its judgment on the merits but would have given directions for the reception of written submissions on costs. The written submissions which this Court has received on the present application would still have been received, they would merely have been limited to the merits of the costs argument and would not have dealt with the question of leave.