K&E Jobson t/a McEwans Services Cleaning v Junifer Pty Ltd

[2009] QDC 149

[2009] QDC 149

DISTRICT COURT
APPELLATE JURISDICTION

JUDGE SAMIOS

No 1154 of 2009

K & E JOBSON trading as	Appellant/Applicant
McEWANS SERVICES CLEANING
and
JUNIFER PTY LTD	Respondent
BRISBANE ..DATE 03/06/2009
ORDER

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HIS HONOUR: This is an application for leave to appeal

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against an order of the Commercial and Consumer Tribunal,
dated 23 March 2009. That order dealt only with the costs of
the matter which had been heard by the Tribunal over two days

commencing 20 August 2008.

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The earlier decision of the Tribunal was delivered on 14
October 2008. The respondent in this matter, Junifer Pty Ltd,

have objected to the notice of appeal subject to leave on the basis that the order was made on 23 March 2009 and the notice of appeal subject to leave was filed on 27 April 2009. The	20
respondent argues that the notice was filed out of time. The applicant submits that this is incorrect.
The decision of the Tribunal was served on the applicants'
solicitors on 25 March 2009. On 30 March 2009 an amended	30
order was received by the applicants' solicitors. The notice of appeal subject to leave was filed in the District Court on 27 April 2009.
Section 100 subsection (3) of the Commercial and Consumer	40
Tribunal Act 2003 provides, "An appeal must be filed within 28
days after the decision takes effect." Section 92 of the Act
provides in paragraph (c) thereof, "A decision of the Tribunal
takes effect if two or more persons are not present when the
decision is given or made or order is made - when the decision	50

is served on all of those parties."
If it is taken that the decision of the Tribunal was served on 1-2 60

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the applicants' solicitors on 25 March 2009 and that is when
the decision took effect the notice of appeal subject to
appeal would be out of time. However, if the amended order
served on 30 March 2009 is taken to be when the decision took

effect the notice of appeal subject to leave would be within	10
time.
The amendment to the order can be described as minor. In the
name of the applicant the word "Sevices" instead of "Services"
was amended.	20
Section 94 of the Act provides for correcting mistakes and
clearly the Tribunal may correct a decision made by it if the decision contains a clerical mistake or an error arising from an accident or slip or omission. Subsection (6) of section 94	30
provides, "The making of the application under this section does not, of itself, stop the order or decision from taking effect according to its terms."
The application referred to in subsection (6) of section 94 is	40
an application made within 14 days after the making of the decision and being based on something mentioned in subsection (1)(a) to (d) that is of sufficient significance to have influenced the outcome of the proceeding.
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In all the circumstances I come to the view that the amendment
was a very minor amendment and of no substance and could not
be taken as having stopped the order or decision from taking
effect according to its terms. The mere serving of an amended 1-3 60

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order on 30 March 2009 on the applicants' solicitors did not start time running again with respect to the 28 days for the filing of a notice of appeal.

However, the question arises: can the time for filing the	10
notice of appeal subject to leave be extended? In Wenn v.
Café San Paul Pty Ltd [2008] QCA 108 Justice of Appeal Muir
said at paragraph 29, "There is no power in the District Court of Queensland Act 1967 or in the Uniform Civil Procedure Rules 1999 Queensland to extend this time limit. Accordingly, if	20
leave to appeal is granted the applicants' appeal must succeed at least to the extent of reducing the judgment by $2,000."
In that case what was under consideration was the filing of an
appeal within 28 days as required by section 100 of the Act.	30
Therefore on the face of it it would appear there is no power
for me to be able to extend the time limit. However, recently
the Court of Appeal in Legal Services Commission v. Bradshaw
[2009] QCA 126 considered the filing of a notice of appeal by
a legal practitioner. The question was whether the appeal was	40
within time for the purposes of the Legal Profession Act and whether the Court had power to extend the time to appeal.
The Legal Profession Act 2007 provided in similar terms to
section 100 of the Act that, "A party could appeal to the	50

Tribunal against the decision within 28 days after the day the information notice mentioned in the Act was given to the party." In Legal Services Commission v. Bradshaw the Court ruled there was power to extend the time under the Legal 1-4 60

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Profession Act or under the Uniform Civil Procedures Rules 748 where this was in the interests of justice.

In the present matter, mindful of the decision in Wenn v. Café

San Paul Pty Ltd, the later decision of the Court of Appeal	10
persuades me that the time in the present matter can be extended where this is in the interests of justice. Clearly the applicants' solicitors were intending to appeal the decision and were taking steps to do so.
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There is no prejudice demonstrated by the respondent if the application for leave to appeal were granted. Furthermore, there is a point of principle arising in this case in the
present matter which I will deal with shortly. The point of
principle is that on the question of costs on the face of it	30
it would appear the applicants were successful and under the that they have costs on the Magistrates Court scale.
However, the learned Magistrate in arriving at his decision	40
was faced with an offer that had been made to settle the
matter some time before, on the 27th of November 2007, when
counsel's fees would not have been incurred and presumably
other costs not incurred of the running of the hearing and the
offer was $25,000 plus costs on the Magistrates Court scale to	50

be agreed or assessed.
As to this the learned Magistrate was satisfied that a written 1-5 60

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offer to settle was made, the offer was not accepted within
the time prescribed and that the offer complied with division
7 of the Act. Then the learned Member said, "The applicant
maintains that the costs are $5,000 and section 142(1)(d) was

satisfied, that the decision of the Tribunal on the matters in	10
dispute is not more favourable to the respondent than the
offer. I reject this submission. I'm not satisfied that the costs would be assessed at $5,000 and I am not satisfied that the decision of the Tribunal on the matters in dispute is not more favourable to the other party than the offer.	20
Accordingly, the applicant is not entitled to costs based on section 142."
This effectively deprived the applicant of reasonable costs
which has been held to include indemnity costs. See Habitat	30
Development Group Proprietary Limited v. Queensland Building Services Authority [2008] QCCT QR 081-06 following Marshall v. Marshall and Seccold [2005] QCCT B60 at 64.
The point of principle is to what extent should the learned	40
Member determine the quantum of the costs to be able to arrive
at the decision to reject the submission made as to the level
of costs. In my opinion it is arguable that there is here a
question of general importance for successful applicants when
it comes to the determination of costs and the quantum of	50

those costs in the context of offers to settle.
The learned Member could have arguably sought further 1-6 60

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submissions on the costs being claimed to be in a position to come to the conclusion he seems to have reached. What I have said does not bind anyone to a final view in this matter but
merely is my view on the application for leave to appeal

against the order.	10
Therefore I am satisfied there is a case here where the
interests of justice requires the time to be extended and I accordingly extend the time for the filing of the notice of appeal subject to leave to 30 March 2009 and I give leave to	20
the applicant to appeal the decision of the Tribunal made on 23 March of 2009.
...
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HIS HONOUR: In addition I am in a position therefore, with
the consent of the parties, to determine the appeal. I do
conclude that the learned Member did make an error in the
approach he took to the applicant's right to costs. The
further submission should have been sought or, alternatively,	40
if they were not sought the learned Magistrate should have
accepted the submission made that the costs represented
something in the order of $5,000 and therefore the applicants were successful and should have, in this case for the reasons identified by the learned Member, had indemnity costs.	50

As the learned Member pointed out the respondents put the applicant to proof on the authority to approve variations and also gave no evidence to support the counterclaim. All 1-7 60

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considerations are relevant including the offer to settle that

was bettered by the applicant in the end result.

Therefore I allow the appeal. I should also say that I

consider the learned Member erred in not allowing the	10
applicant interest on the claim and I'll hear some further submissions on that as well.
...
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HIS HONOUR: I allow interest in the $5,303.11 in accordance with the schedule that I'll mark as an Exhibit 1 to these proceedings.
ADMITTED AND MARKED "EXHIBIT 1"	30
...
HIS HONOUR: I'll order interest to be paid in the sum of
$5,303.	40
I order the respondent to pay the applicant interest on the claim in the sum of $5,303.11 within 30 days.
...	50

HIS HONOUR: I order the respondent to pay the applicant's
costs - subject to submissions you might have to make, Mr
Mason - costs of the appeal including the application for 1-8 60

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leave to appeal.

I order in lieu of the Member's order for costs on 23 March
2009 that costs be paid by the respondent on the indemnity

basis.	10
...
HIS HONOUR: So in lieu of the order that I was proposing I'll
order in terms of paragraph 3 and 4 of the notice of appeal	20
subject to leave.
...
HIS HONOUR: I should add there: I order the respondent to	30
pay the applicant's costs of the appeal including the application for leave to appeal after the filing of the notice of appeal.
...	40
HIS HONOUR: I'll add the words "on the District Court scale."
...
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HIS HONOUR: The respondent pay the applicant's costs of the application including the application for leave to appeal excluding the applicant's costs of preparing and filing the 1-9 60

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application for leave to appeal and the appeal book.

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