Jones v Millward, Lea

[2006] QSC 92

SUPREME COURT OF QUEENSLAND

CITATION:

Jones v Millward, Lea & Anor [2006] QSC 092

PARTIES:

RICHARD LAURANCE JONES and
ELIZABETH ANN JONES
(Plaintiffs)
v
MARK VINCENT MILLWARD and ROSEMARY JANE LEA
(Defendants)
GEORGE PERVAN
(Third Party)

FILE NO/S:

563 of 2002

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court, Cairns

DELIVERED ON:

24 March 2006

DELIVERED AT:

Cairns

HEARING DATE:

3 February 2006

JUDGE:

Jones J

ORDER:

Direct that the Application for Costs Assessment should proceed upon a consideration of the Objection filed herein on 13 September 2005.

Order that the applicant/plaintiffs pay the respondent/defendants’ costs of and incidental to this application to be assessed on the standard basis, such order to take effect 21 days from the date hereof.

CATCHWORDS:

COUNSEL:

Mr M Jonsson for the respondents

SOLICITORS:

Bruce K Gillan Solicitor for the plaintiffs
Vince Martin & Co for the defendants

1. By this application the plaintiffs seek an order that the defendants’ Objections to a Cost Statement be dismissed. The basis for seeking this order is that the Objections identified the Cost Statement by reference to a date that was incorrect. This application effectively challenges and seeks to reverse a decision of the Registrar made in the course of an application for costs assessment pursuant to r 684 of the Uniform Civil Procedure Rules (“UCPR”).

1. The Application for Costs Assessment and the Costs Statement in question was filed on 2 August 2005.  The Costs Statement itself is undated.  On 13 September 2006, the defendants filed objections to the costs statement, the introductory terms of which stated –

“TAKE NOTE that THE DEFENDANTS object to Items in the Costs Statement dated 11 October 2004 as detailed below.”

1. On 8 November 2005 when the matter came before the Registrar on a directions hearing, the solicitors for the applicants argued that the Objections could not be considered on the basis that they related only to a costs statement dated 11 October 2004.

1. The solicitor appearing for the respondents contended that this was an obvious clerical error and sought to have that error corrected under the “slip rule”.  This was opposed by the solicitor for the applicants on the basis that the Registrar did not have the power to make any such amendment. 

1. The Registrar found that the incorrect date was indeed a clerical error and gave leave to the respondents to amend the Objections by substituting the date 13 August 2004, which was the date of the court order authorising the assessment.

1. When the application came on for hearing before me, Mr Jonsson of Counsel for the respondents queried whether the Court constituted by a single judge had jurisdiction to hear the application.  He contended that the Registrar was acting judicially and having determined the justiciable controversy between the parties the Court was therefore functus officio unless the Court was differently constituted.  He submitted that the application was not within the ambit of the rules specifically relating to the review of a Registrar’s assessment.  (Rule 742).  Nor could the application be characterised as a reference by the Registrar pursuant to r 706(3).  In respect of these last two matters Mr Jonsson’s submission is undoubtedly correct.

1. However, as to the first point the Registrar’s ruling was made in the course of a directions hearing.  His order was framed as giving leave to amend a document.  Though in considering whether to make such a direction the Registrar is required to act judicially he was not adjudicating on the rights of the parties, he was not exercising judicial power.  The power conferred on a Registrar by the rules relating to applications to assess costs remains under the control of the Court and in particular of a single judge thereof. 

1. The application before me is not couched as an appeal against the decision of the Registrar even though that was clearly what was intended by the applications.  By its terms, the application seeks orders:-

1.             Objections dated 12 September 2005 be dismissed.

2.             Such further or other order it deems appropriate.

I propose to deal with the application as one seeking directions of this Court.  Such directions can be sought pursuant to r 366 which, with the subsequent rules, confers on the court a very wide discretion to make orders and give directions about the expeditious conduct of the proceedings. 

1. Having determined to proceed in this way I find that there is no substance in the applicants’ contention that the Objections cannot be relied upon on the Application for Costs Assessment.  The Objections are set out, in the manner prescribed by r 717 and follow the format of Form 61 appended to the rules.  The evident purpose of referring to the date of the costs statement in the Objections is to identify the costs to which objection is raised.  The relevant document can be identified by other means.  As I have already noted this particular Costs Statement is undated.  It is identified by it being attached to the application for costs assessment which is dated 1 August 2005 and which was filed on 2 August 2005.  The fact that the Objections relate to that particular Costs Statement is easily divined by the most superficial perusal of the two documents.  During the course of this litigation, other costs orders were made but this did not result in any confusion about which costs were to be assessed by the Registrar.

1. The issues concerning the assessment of costs were identifiable in the two documents before the Registrar and about which there was no dispute as to the authenticity of either.  In my view, therefore, it was unnecessary for the Registrar to engage in the controversy raised by the incorrect reference to the date of the Costs Statement when he considered the directions as to the hearing of the applicaton before him.

1. Though in my view it was unnecessary for the Registrar to do so, it was quite open to him to decide whether to grant leave to correct an incorrect date in a document.  Such a consideration was clearly within his power pursuant to r 706(1)(g) to give directions about the conduct of the assessment process.  Moreover, in giving those directions the Registrar was bound in deciding whether to make an order or direction to regard the interests of justice as paramount.  In the end result it seems to me that the Registrar may have given leave for the document to record the date on which the court order was made rather than identifying the costs statement which, as I have mentioned, was undated.  For the reasons mentioned nothing turns on this error.

Costs

1. It is regrettable that the parties having been involved in hard-fought litigation for over three years, have had its finality delayed by point taking of this kind.  As has been highlighted many times, the Uniform Civil Procedure Rules are to be applied with the objective of avoiding undue delay, expense and technicality with the object of facilitating the just and expeditious resolution of the real issues at minimum expense.  In my view, point taken about the incorrect date was completely without merit.   It has occasioned unnecessary expense and delay and should result in an order for costs in favour of the respondents.  As there has been no opportunity for the respondents to make submissions on this issue, I will delay the operation of the costs order for 21 days to provide an opportunity for this to occur.

Orders

1. I make the following orders –

1.          I direct that the Application for Costs Assessment proceed upon the consideration of the Objections filed herein on 13 September 2005.

2.          I order that the applicant/plaintiffs pay the respondent/defendants’ costs of and incidental to this application to be assessed on the standard basis, such order to take effect 21 days from the date hereof.