Goodwin v O'Driscoll

[2008] QCA 43

SUPREME COURT OF QUEENSLAND

CITATION: 

Goodwin v O'Driscoll & Anor [2008] QCA 43

PARTIES: 

BRUCE GOODWIN
(applicant/appellant/respondent)
v
MICHAEL O'DRISCOLL
(first respondent/not a party to the appeal/not a party to the
application)
GERARD JAMES MURPHY
(second respondent/respondent/applicant)

FILE NO/S: 

Appeal No 9271 of 2006
SC No 7474 of 2004

DIVISION: 

Court of Appeal

PROCEEDING: 

Miscellaneous Application – Civil

ORIGINATING 
COURT: 

Supreme Court at Brisbane

DELIVERED ON: 

7 March 2008

DELIVERED AT: 

Brisbane

HEARING DATE: 

Heard on the papers

JUDGES: 

McMurdo P and Wilson J
Judgment of the Court

ORDER: 

1.	That the order for costs made on 2 April 2007 be set aside
2.	That the respondent Bruce Goodwin pay the applicant Gerard James Murphy’s costs of and incidental to the appeal fixed in the sum of $8,000
3.	That there be no order as to the costs of the application filed on 5 December 2007

CATCHWORDS: 

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where applicant ordered to pay respondent's costs of appeal – where amendment to costs rules occurred – whether transitional provision applies – whether order should be made fixing costs

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where party with benefit of order applied for it to be set aside and a fixed sum set – whether Court should set aside costs order

Uniform Civil Procedure Rules 1999 (Qld) r 667(2)(e),
r 687(2), r 743U
Supreme Court of Queensland Practice Direction Number
7 of 2007

Goodwin v O’Driscoll & Anor [2007] QCA 108

SOLICITORS: 

McCowans Solicitors for the applicant
The respondent appeared on his own behalf

1. THE COURT: On 2 April 2007 this Court (McMurdo P, Jerrard JA and Wilson J) dismissed an appeal brought by Mr Goodwin against the decision of Mr Justice Helman made on 4 October 2006 in a judicial review application.[1] Mr Goodwin was ordered to pay Mr Murphy’s costs of the appeal. Under the costs provisions of the Uniform Civil Procedure Rules then in force Mr Goodwin was accordingly obliged to pay Mr Murphy’s costs of and incidental to the appeal to be assessed by the Registrar on the standard basis: rr 685(1), 703.

   [1] Goodwin v O’Driscoll & Anor [2007] QCA 108.

2. By an application filed on 5 December 2007, Mr Murphy sought an order –

   “that pursuant to r 685(2) of the Uniform Civil Procedure Rules 1999, [his] costs payable by [Mr Goodwin] pursuant to the Order made on 2 April 2007 be fixed in a sum to be determined by this Honourable Court”

   or alternatively, an order for their assessment by a private costs assessor.

3. The parties have consented to the application being dealt with on the papers.

4. Jerrard JA is presently on extended sick leave. A certificate has been issued under s 31 of the Supreme Court of Queensland Act (Qld) 1991. For the purposes of the determination of this application, the Court is constituted by McMurdo P and Wilson J.

5. On 23 May 2007 Mr Murphy filed an Application for Costs Assessment and Costs Statement totalling $9,508.65, and the Registrar scheduled a directions hearing for 10 July 2007. The documents were served on Mr Goodwin under cover of a letter dated 28 May 2007 in which Mr Murphy offered to accept $8,359.15 if payment was made within 10 days. That sum was calculated by omitting the costs of the assessment. Mr Goodwin objected to various items in the Costs Statement, and asked that it be referred to the Court.

6. The Costs Assessment was set down for determination on 17 October 2007. Because of Mr Goodwin’s request that it be referred to the Court, a teleconference was arranged by the Registrar on 3 October 2007. The hearing date was confirmed.

7. The assessment did not proceed on 17 October 2007 in light of a Notification by the Chief Justice dated 3 October 2007 posted on the Queensland Courts website in these terms –

   "NOTIFICATION
   The Rules Committee is preparing amendments to the Uniform Civil
   Procedure Rules in relation to the assessment of both party and party
   and solicitor and client costs. The current draft is with the Office of
   Parliamentary Counsel. The amendments will be processed as soon
   as possible. The draft contemplates that assessments will be carried
   out by a costs assessor drawn from a panel established by the court.
   Those eligible for appointment will be Australian lawyers with at
   least five years’ experience in practice and/or the assessment of costs.
   While the amended rules will not exclude assessment by a Registrar,
   it is intended that would be exceptional. Consistently, Practice
   Direction No. 7 of 2007 (‘Costs Assessment : Interim Arrangements’)
   envisages, pending implementation of the new rules, that assessments
   currently within the Registry be transferred for completion by a legal
   practitioner agreed by the parties or appointed by the court.
   The purpose of this notification is to confirm:

(a)	the intent that assessments will be carried out by Australian lawyers as per the above, and by a Registrar only in exceptional cases; and
(b)	that the procedure set out in Practice Direction No. 7 of 2007 should be followed in respect of all matters for assessment currently within the Registry, including those part heard and those for which hearing dates have been set into the future.

The Hon P de Jersey AC
Chief Justice"

1. Practice Direction Number 7 of 2007 (issued on 28 June 2007) is (so far as relevant) in these terms –

1. On 7 December 2007 the major changes to the costs provisions of the Uniform Civil Procedure Rules envisaged in the Chief Justice’s Notification came into effect. In our view the present case is not covered by the transitional provision in r 743U because there was no order under the previous r 685(2) for the costs to be decided by a person appointed by the Court to carry out an assessment.

2. The Court has power to set aside an order at any time if the party with the benefit of the order consents: r 667(2)(e). Mr Murphy has the benefit of the costs order made on 2 April 2007. In asking the Court to fix the costs, he is implicitly asking it to set aside that costs order, and in all the circumstances it is appropriate for the Court to do so. There should be an order setting aside the costs order made on 2 April 2007.

3. The Court had power to fix costs pursuant to r 685(2) of the former provisions of the UCPR; it continues to have that power under r 687(2) of the new rules.

4. Fixing costs is intended as a summary determination of what is fair and reasonable for costs in the circumstances. It is not intended to mimic an assessment of costs. We fix Mr Murphy’s costs of and incidental to the appeal in the sum of $8,000.

5. In all the circumstances, including the parties’ consent to a determination on the papers, there will be no order as to the costs of the application filed on 5 December 2007.

6. Orders:

   1.    that the order for costs made on 2 April 2007 be set aside;

   2.   that the respondent Bruce Goodwin pay the applicant Gerard James Murphy’s costs of and incidental to the appeal fixed in the sum of $8,000;

   3.    that there be no order as to the costs of the application filed on 5 December