King v King

Case [2012] QCA 81

SUPREME COURT OF QUEENSLAND

CITATION:

King v King & Ors [2012] QCA 81

PARTIES:

JOHN FRANCIS KING
(applicant)
v
SARAH LOUISE KING
(first respondent)
LYDIA ELLEN KING
(second respondent)
BENEDICT JOHN KING
(third respondent)
SAMUEL DAVID KING
(fourth respondent)

FILE NO/S:

Appeal No 7123 of 2011
DC No 832 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil) – Further Order

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

3 April 2012

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Chesterman and White JJA, and Margaret Wilson AJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application to vary costs order made on 6 March 2012 be refused.

CATCHWORDS:

APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where the applicant succeeded on an appeal – where no cost orders were made – where applicant’s lawyers were acting pro bono – where costs agreement varied 15 minutes before delivery of judgment – where new costs agreement provided for recovery of costs under pro bono arrangement – whether costs should be awarded to the applicant

Legal Profession Act 2007 (Qld), s 308

McCullum v Ifield [1969] 2 NSWR 329, cited
Oshlack v Richmond River Council (1998) 193 CLR 72, [1998] HCA 11, cited
Wentworth v Rogers (2006) 66 NSWLR 474, [2006] NSWCA 145, cited

COUNSEL:

No appearance by the applicant, the applicant’s submissions were heard on the papers
No appearance by the respondents, the respondents’ submissions were heard on the papers

SOLICITORS:

Minter Ellison Lawyers for the applicant
McCarthy Durie Solicitors for the respondents

  1. CHESTERMAN JA:  The application for leave to appeal was argued on 21 February 2012.  No submissions were addressed to the court on the question of costs, but it appearing that the applicant’s lawyers were acting for him pro bono, the court thought it appropriate to make no order for costs.  That opinion was reflected in the orders made when judgment was given on 6 March 2012. 

  1. After judgment was pronounced in favour of the applicant his lawyers asked for costs, and were given leave to file written submissions in support of the application.  The submissions when received were accompanied by an affidavit to which were annexed a copy of the costs agreement made between the applicant and his solicitors, and a written variation to the agreement.

  1. The costs agreement was made on 13 October 2011 and is titled “(Pro Bono)”.  The agreement relevantly provided:

“We will provide advice and assistance and instruct Senior Counsel in relation to appealing the District Court decision to strike out your claim …  We will apply for leave to represent you and, if successful, will represent you in QCAT to seek orders to stay proceedings pending a decision in the appeal (work). 

We will undertake only the work set out above or changes that are agreed from time to time. …

4.Charges

4.1…

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AGLC
King v King [2012] QCA 81
Case
[2012] QCA 81
Decision Date

CaseChat Overview and Summary

The matter before the court involved an appeal by the applicant against a costs order. The applicant had succeeded on appeal but no costs order was made in the lower court. The applicant's lawyers had acted pro bono, and a costs agreement was varied just 15 minutes before the judgment was delivered. The new costs agreement allowed for the recovery of costs under the pro bono arrangement. The court was required to determine whether costs should be awarded to the applicant.

The primary issue before the court was whether it had the power to order the respondent to pay the applicant’s costs, given that the application to vary the costs order was made shortly before the judgment was delivered. The court considered the implications of the pro bono arrangement and whether it impacted the ability to recover costs. It was also necessary to examine the procedural fairness in allowing such a late variation to the costs agreement.

The court found that it did not have the power to order the respondent to pay the applicant’s costs. It determined that the application to vary the costs order was made too late, and the variation was not procedurally fair. The court held that the pro bono arrangement did not alter the fundamental principle that a party is not entitled to costs unless they are expressly awarded by the court. Consequently, the application to vary the costs order was refused.

No further orders were made by the court beyond the refusal of the application to vary the costs order.

Orders

Orders of the court

Application to vary costs order made on 6 March 2012 be refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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