Parbery v Mensink

[2018] QCA 51

[2018] QCA 51

COURT OF APPEAL

GOTTERSON JA

Appeal No 8904 of 2017
SC No 6593 of 2017

STEPHEN JAMES PARBERY

MICHAEL ANDREW OWEN  First Respondent/First Applicant

QUEENSLAND NICKEL PTY LTD  Second Respondent/Second Applicant

ACN 009 842 068
(CONTROLLER APPOINTED)

v

CLIVE THEODORE MENSINK  Appellant/Respondent

BRISBANE

MONDAY, 26 MARCH 2018

JUDGMENT

GOTTERSON JA:  On 7 August 2017, a judge of the Trial Division ordered that service of the claim and statement of claim upon the appellant, Clive Theodore Mensink, the fifth defendant in the proceeding before him, be dispensed with.  That order was order 2 made that day.

Order 3, made pursuant to r 116 of the Uniform Civil Procedure Rules, ordered that service of those documents upon the appellant be effected in a manner which included delivery of copies of them to a solicitor’s office and a residential address, as well as sending them to some four email addresses.

On 31 August 2017, the appellant filed a notice of appeal seeking orders that orders 2 and 3 be set aside.  Today I was to hear an application for security for costs of the appeal, filed by the first respondents to the appeal, the liquidators of Queensland Nickel (controller appointed, in liquidation).

Late in the afternoon on Thursday 22 March, the Deputy Registrar (Civil Appeals) was informed that the appellant seeks to have his appeal proceeding dismissed, but that the parties were unable to agree as to the form of the costs order to be made in relation to the dismissal.

This morning, I heard argument as to costs.  The appellant accepts that it must pay the respondents’ costs of the appeal, but submits that it should do so on the standard basis.  The respondents submit that their costs should be on the indemnity basis.

I have concluded that the respondents’ costs should be paid on the indemnity basis, for the following reasons.

Order 8 of the orders made on 7 August 2017 ordered that the order document containing the orders made that day be served on the appellant by the same modes for service on him of the claim and the statement of claim.

The notice of appeal was filed by the firm of solicitors at whose address copies of the claim, the statement of claim, and the orders were to be delivered.  The substantive ground of appeal in the notice of appeal was that the learned primary judge erred in finding that there was a probability that the proposed modes of substituted service would be effective to bring knowledge of the proceeding to the appellant.

An outline of submissions filed by the same firm of solicitors on 10 November 2017 developed this ground of appeal with respect to each of the addresses at which copies of the claim and statement of claim were to be delivered or emailed.

However, if it be assumed, as I do, in absence of evidence to the contrary, that the notice of appeal was filed upon instructions from the appellant, then, obviously, the orders made on 7 August 2017 were promptly brought to his attention.  Knowledge of the contents of those orders brought with it knowledge that the claim and statement of claim had been filed and were to be served on him in accordance with orders 2 and 3.

These circumstances cogently demonstrate the futility of the substantive ground of appeal.  If one of the means of service of the orders made on that date was effective in bringing them to the appellant’s knowledge, there is every reason to think that it would have brought the claim and statement of claim and their respective contents to the appellant’s actual knowledge also.

Plainly, the notice of appeal was one that should never have been filed in the first place.  It is reasonable that the appellant compensate the respondents on an indemnity basis for the costs that they have had to incur in respect of the appeal, which, belatedly but sensibly, is now discontinued.

The orders of the Court are:

1.Appeal dismissed.

2.The appellant is to pay the respondents’ costs of the appeal on the indemnity basis.