Thallon Mole Group Pty Ltd v Morton

DISTRICT COURT OF QUEENSLAND

CITATION: 

Thallon Mole Group Pty Ltd v Morton [2023] QDC 2

PARTIES: 

THALLON MOLE GROUP PTY LTD ACN 104 671
801
(Plaintiff/Respondent)

v

LOUISE MORTON (Defendant/Applicant)

FILE NO/S: 

BD 2695/19

DIVISION: 

Civil

DELIVERED ON: 

12 January 2023 (delivered ex tempore)

DELIVERED AT: 

Brisbane

HEARING DATE: 

12 January 2023

JUDGE: 

Barlow KC DCJ

ORDERS: 

1.	The time for filing and service of the application and the amended application be abridged pursuant to rule 7 of the Uniform Civil Procedure Rules 1999(Qld).
2.	The defendant have leave to appeal the order as to costs made in this proceeding on 15 December 2022, on the grounds stated in the draft Notice of Appeal comprising exhibit JWH-4 to the affidavit of James William Hill sworn on 9 January 2023 and filed on 11 January 2023.
3.	The costs of this application be reserved to the Court of Appeal in determining the appeal.

CATCHWORDS: 

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – APPEALS AS TO COSTS – RELEVANT PRINCIPLES – GENERALLY – a decision on costs was handed down after the primary judgment – the applicant sought leave to appeal the decision on costs - the trial judge was unavailable for the hearing of the application for leave to appeal pursuant to 118B of the District Court of Queensland Act 1967 – final day for appeal from costs order – whether there are arguable grounds of appeal which might lead to the correction of an arguable substantial injustice

LEGISLATION: 

District Court of Queensland Act 1967, s 118B

CASES: 

Emanuel Management Property Ltd (in liquidation) v
Fosters Brewing Group Ltd [2003] QSC 484
House v The King (1936) 55 CLR 499
Morrison v Hudson [2006] 2 Qd R 465
Recreational and Competitive Events Resources &
Services Pty Ltd v Champion’s Ride Days Pty Ltd [2020]
QCA 90

COUNSEL: 

M. Robinson (Solicitor) for the Plaintiff

C.H. Matthews for the defendant

SOLICITORS: 

Robinson Locke Litigation Lawyers for the plaintiff
Thomson Geer for the defendant

1. The respondent to this application, who is the plaintiff in the proceeding, seeks an adjournment of the application, which was filed yesterday, although the application and supporting affidavits were provided to the plaintiff’s solicitors on 9 January. The applicant seeks leave to appeal the order made by Judge Muir as to the costs of the proceeding, that order having been made on 15 December 2022. In order to bring an appeal on, if granted leave, within the time required under the rules, any notice of appeal needs to be filed by today, otherwise it would be incumbent on the proposed appellant to seek the leave of the Court of Appeal to commence the appeal out of time.

2. The respondent seeks an adjournment for a number of reasons. One, having been served with notice of this application, the respondent has not been able to engage counsel because counsel who were in the proceeding are not available and, given the complexity of the matter, it would not be appropriate or…