Thompson v Macmillan

Case [2023] QCA 183

SUPREME COURT OF QUEENSLAND

CITATION:

Thompson v Macmillan [2023] QCA 183

PARTIES:

JAMES BOYD THOMPSON
(appellant)
v
ELIZABETH MACMILLAN
(respondent)

FILE NO/S:

Appeal No 770 of 2023
SC No 9148 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:


Supreme Court at Brisbane – [2022] QSC 300 (Jackson J)

DELIVERED ON:

8 September 2023

DELIVERED AT:

Brisbane

HEARING DATE:

29 August 2023

JUDGES:

Bond and Dalton JJA and Cooper J

ORDER:

Appeal dismissed, with costs.

CATCHWORDS:

PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – CORRECTION UNDER SLIP RULE – where a defendant obtained two separate costs orders against the plaintiff as part of one order – where the defendant sought to have costs payable to her pursuant to only one of those orders assessed and converted into a money order in her favour – where a mistake by the defendant’s solicitors led to the costs assessor mistakenly wording the costs certificate in such a way as to apparently encompass both costs orders – where the same mistake was then reflected in the money order obtained consequent upon the costs certificate being issued – where the defendant sought to have the costs assessor’s certificate and the money order amended under the slip rule – whether the documents could be amended under the slip rule

Uniform Civil Procedure Rules 1999 (Qld), r 388(2), r 667(2)(d)

Robertson v State of Queensland[2021] QCA 92, approved

COUNSEL:

The appellant appeared on his own behalf
C D Templeton for the respondent

SOLICITORS:

The appellant appeared on his own behalf
ACLG Lawyers for the respondent

  1. BOND JA:  In order to convert a costs order in her favour into a money order in her favour the present respondent (the sixth defendant)[1] took the following steps:

    (a)she served a costs statement on the present appellant (the plaintiff);

    (b)she filed an application for orders that a costs assessment be completed and that a costs assessor be appointed to assess the costs;

    (c)she obtained orders to that effect;

    (d)she obtained a costs certificate from the costs assessor;

    (e)she obtained an order based on that certificate that the plaintiff pay her a money sum for costs.

    [1]Although I will refer to her in this way, the sixth defendant is no longer a defendant to the substantive proceeding in the trial division, so is strictly to be viewed as the “former” sixth defendant.

  2. There is nothing remarkable in that recitation of the procedural steps by which a party having the benefit of a costs order might eventually obtain an order that the other party pay a sum of money in respect of the costs it was ordered to pay.

  3. The original costs order contained two numbered orders requiring the plaintiff to pay the sixth defendant’s costs: first, that the plaintiff pay the first and sixth defendants’ costs of a particular application on an indemnity basis (order 33);…

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AGLC
Thompson v Macmillan [2023] QCA 183
Case
[2023] QCA 183
Decision Date

CaseChat Overview and Summary

In the appeal case of Thompson v Macmillan, the appellant, Thompson, contested the respondent's application to correct and amend documents related to costs assessments. The dispute originated from two separate costs orders issued against Thompson by Mullins J on 12 February 2016. These orders required Thompson to pay costs to the sixth defendant on an indemnity basis for a specific application and to the fifth, sixth, and seventh defendants on a standard basis for the proceeding. The sixth defendant later sought to have the costs payable under the first order assessed and converted into a money order, which led to complications due to an error in the costs certificate.

The court faced the issue of whether the documents could be amended under the slip rule to correct a clerical error made by the respondent's solicitors, which led to an incorrect wording in the costs certificate and subsequently in the money order. The slip rule allows for the correction of clerical errors in judgments or orders to ensure they accurately reflect the court's intention. Thompson argued that the primary judge's decision to amend the documents was flawed and that the scope of the assessment was incorrectly limited to one of the orders.

The court concluded that the primary judge's decision to apply the slip rule was appropriate. The primary judge had identified and correctly addressed the clerical errors in the certificate and the order. The court found that the primary judge's reasons were adequate and had properly considered the relevant facts and arguments. The appeal was dismissed with costs awarded against Thompson. The primary judge's orders to correct the certificate and the money order by specifying that they related only to order 33 were upheld.

Orders

Orders of the court

Appeal dismissed, with costs.

Background

Background to the litigation

For the following reasons, the appeal should be dismissed.Factual background On 12 February 2016, Mullins J (as her Honour then was) made orders including the following numbered paragraphs:“33.The plaintiff pay the costs of the first and sixth defendants of the application filed on 27 January 2016 on an indemnity basis.…35.The plaintiff otherwise pay the costs of the proceeding of the fifth, sixth and seventh defendants on the standard basis.” On 2 April 2020, the sixth defendant served a costs statement on the plaintiff under cover of an email dated 2 April 2020 from her solicitors to the plaintiff. The email referred to the order of Mullins J; quoted order 33 in full; made no reference to order 35; and attached by way of service “a Cost Statement pursuant to [UCPR r 705] which has been drafted and then settled by an expert cost assessor on the indemnity basis”. The enclosed costs statement stated that the authority for the assessment of the costs was the order of the Court by Mullins J made on 12 February 2016. On 3 July 2020 the plaintiff filed his notice of objection to the costs claimed by the costs statement served on 2 April 2020. The content of the objections advanced in his notice revealed that he was not in any doubt that the costs statement was limited to identifying the costs said to be recoverable pursuant to order 33 and that it did not seek to identify costs recoverable pursuant to order 35. Without seeking to be exhaustive, the following observations can be made:(a)Objection 4 was said to relate to all items in the cost statement and suggested “some of the steps claimed in the costs statement do not relate to the application which is the subject of Justice Mullins' order of 12 February 2016 but that fact may not be apparent from the description in the costs statement.”(b)Objection 14 was said to relate to a multiplicity of items and suggested “[t]hese items are not captured within the order that ‘[t]he plaintiff pay the costs of the first and sixth defendants of the application filed on 27 January 2016 on an indemnity basis’.”(c)Objection 24 was also said to relate to a multiplicity of items and suggested “[t]hese items are properly characterised as costs of the proceeding not a cost of the application to strike out … As it is a cost of the proceeding not the application to strike out, it is unreasonable to include it within the terms of the order to pay ‘costs of the first and sixth defendants application filed on 27 January 2016 on an indemnity basis.’”(d)Similarly, objections 31 to 39 related to discrete items and also advanced the objection “[t]his was simply a cost of the proceeding not ‘costs of the application filed on 27 January 2016’ and not reasonably claimed here.” In oral argument before this Court, and after relevant parts of his notice of objection were drawn to his attention, the plaintiff conceded that, contrary to the position taken in his notice of appeal and his written submissions, he could not contend that he had been in any doubt that the sixth defendant’s intention was to seek an assessment only of the costs the subject of order 33.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Ground 16 fails.Conclusion The appeal should be dismissed, with costs. DALTON JA: I agree with the order proposed by Bond JA and with his reasons. COOPER J: I agree with Bond JA.

Ratio Decidendi

Legal Principle Established

Based on that reasoning, the primary judge ordered that –(a)the cost assessor’s certificate dated 18 December 2020 be corrected by adding “order 33 of” before “the Orders” at paragraph 4;(b)the registrar’s order dated 11 January 2021 be corrected by adding “order 33 of” before “the order”,thereby ensuring that both the certificate and the order were confined to the costs which were the subject of order 33 of the orders made by Mullins J on 12 February 2016.Consideration of the grounds of appeal In reaching the conclusion that this was an appropriate case for the application of the slip rule, the primary judge was right for the reasons recorded in the above quote from his Honour’s judgment. The plaintiff’s challenge to his Honour’s orders is without merit. The plaintiff’s notice of appeal raised 19 grounds of appeal. By the time the appeal came on for argument many of them had been struck out by order of the Court. The remaining grounds are dealt with under separate headings below.Grounds 1 and 3 The plaintiff contended the primary judge erred in law through having provided inadequate reasons for his decision. He complained that the primary judge had neither identified nor specifically resolved his arguments that (footnotes omitted) –“•Nowhere does the costs statement served on 2 April 2020 state that this costs statement is confined to order 33.•The application for costs assessment filed 13 July 2020 is not confined to order 33.•The costs assessor made no clerical error in his certificate.•The costs assessor does not have the power to limit the scope of his assessment.•Nowhere does the costs assessor state that he is changing the scope of the assessment that he has been ordered to do.•There is no indication that Mr Thompson understood that the costs assessment undertaken in the second half of 2020 was intended only with respect to order 33.” Save that the primary judge had not recorded the details discernible in the notice of objection as has been done above, his reasons had identified and dealt with all the facts recorded above and, having done so, expressed his views that the slip rule applied in the terms already recorded. The primary judge was astute to the facts identified in the first and second dot points. His conclusion that there were clerical mistakes in the certificate and the order was not only open to him but obviously right. The observations concerning scope in the fourth and fifth dot point were irrelevant. The point made in the final dot point was dealt with in the primary judge’s reasons because he made a factual finding to the contrary. The plaintiff suggested that a number of issues had been the subject of discussion during the course of the oral argument before the primary judge and that the reasons were flawed because they failed to record and deal with the detail of what was discussed. But the duty to give reasons does not extend so far. As Henry J (with whom Fraser and McMurdo JA agreed) recently observed in this Court, “[m]erely demonstrating an argument by a losing party was not addressed in the reasons for judgment will not ground error, it being the relative significance of the argument to the resolution of the determinative issues in the case which matters”.[8][8]See Robertson v State of Queensland [2021] QCA 92 at [150], referred to with approval in Greer v Greer [2021] QCA 143 per Bond JA (with whom Sofronoff P and Wilson J agreed) at [112].