Murphy Operator and Ors v Gladstone Ports Corporation (No 8)

[2021] QSC 57

SUPREME COURT OF QUEENSLAND

CITATION:

Murphy Operator & Ors v Gladstone Ports Corporation (No 8) [2021] QSC 57

PARTIES:

MURPHY OPERATOR PTY LTD
ACN 088 269 596

(first applicant)

TOBARI PTY LTD
ACN 010 172 237

(second applicant)
SPW VENTURES PTY LTD
ACN 135 830 036
(third applicant)
v
GLADSTONE PORTS CORPORATION LIMITED
ACN 131 965 896
(respondent)

FILE NO/S:

BS No 7495 of 2017

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

19 March 2021

DELIVERED AT:

Rockhampton

HEARING DATE:

On the papers

JUDGE:

Crow J

ORDER:

1.   The plaintiffs pay the defendant’s costs of, and incidental to, the application heard 2 February 2021 on a standard basis.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INTERLOCUTORY PROCEEDINGS – GENERALLY – where the applicant was wholly unsuccessful in their interlocutory application  - where the applicant seeks that the cost of the application be reserved on the basis that, inter alia, the application dealt with a novel issue – where the respondents seeks their costs – whether the general rule ought to apply

Uniform Civil Procedure Rules, r 681

Murphy Operator & Ors v Gladstone Ports Corporation (No 7) [2021] QSC 18, cited
Bucknell v Robins [2004] QCA 474, applied

COUNSEL:

L W L Armstrong QC, with M J May, for the applicants

D G Clothier QC, with E L Hoiberg, for the respondent

SOLICITORS:

Clyde & Co for the applicants

King Wood Mallesons for the respondent

1. On 11 December 2020 the plaintiffs filed an application seeking that the requirement for disclosure of expert reports under r 212 of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) be dispensed with. On 12 February 2021 I dismissed that application and invited written submissions on costs.[1] This judgment is concerned with the determination of such a cost order.

   [1]Murphy Operator & Ors v Gladstone Ports Corporation (No 7) [2021] QSC 18.

2. The applicants submit that the costs of and incidental to the application should be reserved. They submit that r 681 of the UCPR provides a mere “starting point” in the exercise of the court’s discretion as to costs and that I ought exercise such a discretion to reserve the costs for the following reasons:

   (a)The application was in the nature of a case management hearing as the application sought to have the court make a determination on the future procedural conduct of the proceeding.

   (b)That despite the application being contentious it raised a novel practical issue arising from the intersection of r 212 of the UCPR and the conduct of class actions (with particular regard to pre-trial mediations).

   (c)That the orders sought in the application would have benefited both sides.

3. On the other hand, the respondent seeks their costs. They argue that, despite the court having a wide discretion to do so,[2] there is no reason to depart from the general rule. The respondent submits that:

   (a)It is not correct to liken the application to a case management hearing, as the application was discrete and required a separate hearing date.

   (b)That the application may indeed be described as “novel”, however that is not a reason per se to dispense with the general rule as to costs, particularly, the defendant submits, as the requirement for disclosure of expert reports has been a longstanding procedural rule in Queensland.

   (c)That it is incorrect to suggest, as is done by the plaintiff, that orders sought in the application would have benefited both sides.

   [2]Bucknell v Robins [2004] QCA 474 at [17] per Philippides J, citing Oshlack v Richmond River Council (1998) 193 CLR 72.

4. The submission made by the applicant that r 681 of the UCPR is merely a “starting point” is wrong; the rule itself expressly states that the it is the “general rule”. I must have, as the case law shows, good reason to deviate from it.[3]

   [3]Bucknell v Robins [2004] QCA 474 at [17] per Philippides J, citing Oshlack v Richmond River Council (1998) 193 CLR 72.

5. Therefore, it seems that the onus is on the plaintiff to establish a case as to why costs ought to be reserved.  I am not satisfied that they have.

6. The submission that the hearing was akin to that of a case management hearing is largely incorrect, the application required a discrete hearing day and involved extensive oral and written submissions being made by the parties. Further, while the application may be described as (and is conceded by the defendant) “novel”, it is only novel as the application sought dispensation from a longstanding procedural rule. The rule compelling disclosure of expert reports is part of a broader policy which seeks to avoid the proliferation of partisan experts; a policy which is just as, if not more important, in class actions than regular proceedings.  Finally, I do not accept the submission of the applicants that the defendant would have benefitted from the orders ought in the application; particularly in light of the opposition the defendant had to the orders being made.

7. In paragraph 10 of their written submissions, the plaintiffs submit that a “reserved costs order recognises that the ultimate outcome of the proceeding does or may have some bearing on which party (if any) ought to recover their costs of a given event.” The plaintiffs take the submission further by arguing that should the plaintiffs be ultimately successful at trial, then the costs of the application ought to be recoverable as a “reasonable and appropriate” procedural steps taken in the course of obtaining the outcome – no different to a typical directions hearing. 

8. Again, I do not accept this submission – primarily for two reasons. Firstly, as I stated above the application was not akin to a directions hearing, Secondly, a party which is ultimately successfully does not have a carte blanche on interlocutory applications with favourable costs orders. It very well may be, as is the case here, that applications are run which cannot be said to have any effect on the final outcome or are not, as a whole, necessary for the proceedings to progress. It does not follow that a party in that situation, who files those types of applications ought not be indemnified for the costs of doing so.

9. Therefore, I order that the plaintiffs pay the defendant’s costs of, and incidental to, the application heard 2 February 2021 on a standard basis.