SUPREME COURT OF QUEENSLAND

CITATION:	Hartley v Hartley [No 2] [2023] QCA 80	
PARTIES:	SHANE MICHAEL HARTLEY AS EXECUTOR OF THE WILL OF SHIRLEY LILLIAN HARTLEY (DECEASED)
(applicant)
v
CRAIG ANDREW HARTLEY
(respondent)	
FILE NO/S:	Appeal No 776 of 2022
DC No 27 of 2017	
DIVISION:	Court of Appeal	
PROCEEDING:	General Civil Appeal – Further Orders	
ORIGINATING COURT:	District Court at Cairns – [2021] QDC 323 (Morzone QC DCJ)	
DELIVERED ON:	26 April 2023	
DELIVERED AT:	Brisbane 	
HEARING DATE:	Heard on the papers	
JUDGES:	Morrison and Bond JJA and Boddice J	
ORDERS:	1.	The applicant must pay the respondent’s costs of the applicant’s application filed on 8 February 2022, to be assessed on the standard basis.
2.	The applicant shall not be entitled to any reimbursement or indemnity from the assets of the estate in relation to his own costs of the application or the costs ordered to be paid to the respondent.	
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – COSTS OF PROCEEDING IN WRONG COURT – OTHER CASES AND MATTERS – where the applicant sought to appeal the primary judge’s decision before any final order had been made – where directions were made permitting a final order to be obtained and then a decision made as to whether the appeal would still be pursued – where the applicant decided not to press any appeal after a final order was made – whether costs should be awarded in favour of the applicant or respondent
Appeal Costs Fund Act 1973 (Qld), s 15(1)
Succession Act 1981 (Qld), s 41
Hartley v Hartley [2022] QDC 217, cited
Hartley v Hartley [2022] QCA 96, cited
Spencer v Burton [2015] QCA 145, distinguished	
COUNSEL:	D J Topp for the applicant
T J Naylor for the respondent	
SOLICITORS:	Smithfield Law for the applicant
Maurice Blackburn Lawyers for the respondent	
[1]	THE COURT:  On 3 March 2017, the respondent before this Court (the respondent) filed an originating application in the District Court which sought orders pursuant to s 41 of the Succession Act 1981 (Qld) that adequate provision be made out of his deceased mother’s estate for his proper maintenance and support.
[2]	On 14 December 2021, the primary judge published written reasons for judgment explaining his reasons for concluding that he would make an order that further provision be made.  Some complexity attended the formulation of the terms of the order which the primary judge contemplated.  Accordingly, the only order made by the primary judge at the time he published his reasons was:
“I will hear further submissions from the parties about the form of order consistent with this decision, and any application as to costs.”
[3]	The applicant before this Court (the applicant) posted to the Court of Appeal a notice of appeal from the primary judge’s decision and the notice was received on 19 January 2022.  The notice of appeal had identified three alleged errors said to have been made in the primary judge’s reasons.  On 8 February 2022, the applicant filed an application which purported to be an application for an extension of the time within which to appeal.  It was on the basis of that application that the applicant moved the Court.
[4]	The Court’s reasons in Hartley v Hartley [2022] QCA 96 explain what then happened.
[5]	At the hearing before the Court it was clear that the appeal record was manifestly inadequate.  It contained only the affidavit evidence of the applicant before the primary judge; it omitted the affidavit evidence on which the respondent before the primary judge had relied; it omitted the transcript of the first day of the hearing before the primary judge in which deponents were cross-examined; and it omitted – so this Court assumed – evidence of the occurrence of the events which had been contemplated by the order made by the primary judge and the outcome of those events, namely an order consistent with the primary judge’s reasons and which also disposed of any application made as to costs.
[6]	Nevertheless, the written submissions of both the applicant and the respondent had engaged with the merits of the argument that the primary judge had erred in deciding to order a pecuniary provision in favour of the respondent and also with the argument concerning an extension of time.  Both sets of submissions had proceeded on the same mistaken basis, namely that the primary judge had made an order capable of being appealed.
[7]	That mistake was only revealed to the Court during the course of that argument when, after the Court enquired of the parties as to the form of order which the primary judge had ultimately made, the Court was informed that no order consistent with the primary judge’s reasons had yet been made.  The Court pointed out that in that event the application may be regarded to have been misconceived.  Time for bringing an appeal which enabled the Court to address any error of discretion made by the primary judge in ordering provision under s 41 would only begin to run when such an order was made.
[8]	The Court adjourned the application before it to give the parties time to file written submissions addressing the course which the Court should then take.  The applicant contended, wrongly, that the primary judge had made a decision capable of being appealed, because of what he had written in his reasons.  The respondent contended, belatedly, that, there being no appellable order, the application should be dismissed with costs.
[9]	The Court concluded that some advantage should be taken of the work done by the parties and by the Court in relation to the argument which had already occurred.  That work had led the Court to identify that the primary judge had erroneously excluded one aspect of the evidence, and had also made an error in one aspect of his application of legal principle.  It may be observed that neither of those errors had been identified by the applicant.  The Court decided that it would treat the misconceived application for an extension of time within which to appeal as an application to this Court for directions in relation to the appeal which might be made in relation to the order to be made by the primary judge.
[10]	The Court also noted:
“We acknowledge that because the primary judge has not yet made an order, his Honour is not yet functus officio.  His Honour contemplates hearing from the parties further before making a final order.  It would be open to the primary judge, of his own motion, or upon application by a party, to reopen the proceeding before him to correct the errors which we have identified and to exercise his discretion on a proper basis, because it has long been the law that a court may review, correct or alter its judgment at any time until its order has been perfected: Texas Co (Australasia) Ltd v Federal Commissioner of Taxation (1940) 63 CLR 382, at 457; Smith v New South Wales Bar Association (1992) 176 CLR 256 at 265; DJL v The Central Authority (2000) 201 CLR 226 at 244.”
[11]	The Court then made the following orders:
“1.	The further hearing of the present application is adjourned to a date to be fixed, costs reserved.
2.	As soon as is practicable, the parties must take all reasonable steps to obtain from the primary judge, his order finally disposing of the matters in issue on the application before him.
3.	The applicant before this Court must, within 7 days after the order is made by the primary judge, either:
(a)	notify the respondent before this Court that it does not intend to appeal; or
(b)	file and serve his notice of appeal from the order made by the primary judge.
4.	In the event that the applicant before this Court takes the course referred to in 3(a):
(a)	the parties must within a further 7 days file in this Court their submissions as to the orders which should be made in relation to the present application, including as to costs, such submissions being limited to 4 pages; and
(b)	the application will be determined on the papers.
5.	In the event that the applicant before this Court takes the course referred to in 3(b):
(a)	The appeal record for that appeal must comprise:
(i)	The appeal record in the present application before the Court;
(ii)	The written submissions received in respect of the present application;
(iii)	The transcript of the argument which has already occurred on the present application;
(iv)	Such supplementary volumes as will remedy the inadequacies in the appeal record in the present application and which will be relevant to the issues raised by the notice of appeal and the orders sought by it.
(b)	The present application and the appeal will be listed for hearing before a Court comprised of Morrison JA, Bond JA and Boddice J on a date to be fixed.
6.	Liberty to apply.”
[12]	Subsequently, the primary judge published further reasons for judgment for making an order finally disposing of the matters in issue before him (save for some minor issues not presently relevant) by perfecting a form of order requiring provision to be made out of the estate and in favour of the respondent, as his previous reasons had foreshadowed he would: see Hartley v Hartley [2022] QDC 217.  His Honour’s reasons reveal that he had received further written and oral submissions on the significance of the errors which had been identified by this Court in its judgment, that he addressed those matters and that he proceeded to re-exercise the discretion having done so.  He must be regarded as having reviewed and corrected his judgment before perfecting any order.
[13]	The applicant decided not to press an appeal from the orders made by the primary judge.
[14]	The question remaining for consideration is the question of costs of the application before this Court.
[15]	The applicant advanced the following contentions:
(a)	An analogy was to be drawn with Spencer v Burton [2015] QCA 145.  In the present case, the Court of Appeal expressly directed the primary judge to “correct the errors which we have identified and to exercise his discretion on a proper basis”, which is what also happened in Spencer v Burton, the only difference there being that a different judge performed the cognate task.  In Spencer v Burton the court ordered that costs should follow the event.
(b)	The application for leave to appeal should be dismissed; the respondent should pay the applicant’s costs on the standard basis; and, the respondent should be granted an indemnity certificate pursuant to s 15(1) of the Appeal Costs Fund Act 1973 (Qld) in respect of the application.
(c)	Alternatively, if an indemnity certificate is denied, the application should be dismissed with no order as to the respondent's costs, but the applicant’s costs of and incidental to the application should be paid to him out of the estate, on an indemnity basis.  The latter order was justified because the applicant acted reasonable in commencing the proceeding in this Court but should be regarded as “prudently withdrawing this Appeal” in a “context of the correction of the errors identified at first instance not altering the practical result”.
[16]	The respondent advanced the following contentions:
(a)	In effect, the applicant is in the same position as if he had been unsuccessful in his appeal.
(b)	In effect, the respondent is in the same position as a successful party on an appeal conducted in the usual manner.
(c)	By his conduct the applicant forced the respondent to incur costs in defending the application.  In principle, as the successful party, the respondent should be indemnified for its costs.
(d)	Costs should follow the event in the usual way and the applicant should pay the respondent’s costs and outlays of and incidental to the appeal, the application for leave to appeal out of time and the supplementary submissions.
(e)	Those costs should be assessed on the indemnity basis.  The respondent has been put to expense which it should never have had to incur because the initial application, the notice of appeal, and the further submissions as to prematurity had no prospects of success.  In particular:
(i)	The appeal record was manifestly inadequate.
(ii)	The application to this Court was premature as no appellable order had yet been made.  The applicant failed to recognise this initially and persisted in his misconceived approach even when given the opportunity to advance submissions on the question.
(iii)	Although the Court identified two errors of law, which the primary judge ultimately corrected, neither of them had been identified by the applicant.
(iv)	The errors which had been suggested in the notice of appeal could not have demonstrated that the primary judge’s discretion had miscarried, so the appeal would have failed even if it had been properly constituted.
(f)	The applicant should have no right of reimbursement out of the estate for those costs or for his costs in this Court.
(g)	In the alternative, the respondent contended that if this Court formed the view that an appeal on a question of law had been successful, the respondent should be granted an indemnity certificate pursuant to s 15(1) of the Appeal Costs Fund Act.
[17]	That last point, common to both submissions, may be dealt with first.  There is no characterisation of the events which happened which permits a conclusion to be drawn that there has been a successful appeal against a decision of a court to the Supreme Court on a question of law.  The only order which could have been appealed was not appealed.  The jurisdiction to grant an indemnity certificate pursuant to s 15(1) of the Appeal Costs Fund Act does not arise.  We reject the submission that any such certificate should issue.
[18]	In this case, before the primary judge had made a final order and in the course of responding to a misconceived application for leave to appeal, but which the Court was prepared to treat as an application for directions, the Court of Appeal identified that the primary judge had made two legal errors.  Before he became functus officio, the primary judge considered the suggested errors and agreed.  He then re-exercised his discretion in a way which remedied those errors and made a final order.  But that did not change the outcome in the applicant’s favour.  Moreover, the identification of the errors and the re-exercise of the discretion cannot be attributed to the applicant’s efforts.
[19]	The re-exercise of the discretion by the primary judge did not address the matters which by his misconceived notice of appeal the applicant had suggested were appellable errors.  Yet the applicant changed his mind about pursuing an appeal in which he pressed those matters.
[20]	There was no analogy to be drawn with Spencer v Burton.  That was a case where an appellant succeeded on appeal.  The event in that case was decided in the appellant’s favour.  But in present case, no event was decided in the applicant’s favour.  And, contrary to the applicant’s submissions, this Court did not give the primary judge any express direction to correct anything.  There was no occasion for such a direction to be made.  The Court merely noted that a particular course would be open to the primary judge, of his own motion, or upon application by a party.  There is an obvious and fundamental distinction between this Court observing that it would be open for a judge to do something and this Court directing the judge to do something.
[21]	Rather than any event being decided in the applicant’s favour, what has happened here is that the applicant advanced an application to the Court of Appeal for an extension of time in which to appeal when there had not yet been an order capable of being appealed.  Ordinarily, that would have resulted in the application being dismissed with costs.  The Court, to the applicant’s potential advantage, was prepared to treat the application as one for directions about a proposed appeal.  But, at a time when, consequent upon directions the Court had made, the applicant could have then sought to pursue his appeal if the alleged errors which had caused him to move the Court in the first place had been worthy of pursuit, the applicant decided not to do so.
[22]	The applicant’s application filed on 8 February 2022 must be dismissed.  Costs should follow that event.  Out of an abundance of caution, we observe that those costs would necessarily include all the respondent’s costs of and incidental to responding to the application as it was advanced by the applicant, despite the way the Court ultimately was prepared to deal with the application.
[23]	The respondent contends that those costs should be assessed on the indemnity basis.  Had the respondent not made the same error as the applicant had made there might have been more force in that position.  We acknowledge that the respondent invites us to evaluate the alleged errors identified in the applicant’s proposed notice of appeal, and to conclude that they were always so doomed to failure as to warrant an indemnity costs order.  We do not think it is appropriate in effect to decide an appeal that was never properly run in the context of a costs decision.  We do not consider this is an appropriate occasion to award indemnity costs.
[24]	The applicant has not presented any viable argument that the estate should bear the burden of either the applicant’s costs of its failed application or of its liability to pay the respondent’s costs.
[25]	The Court orders as follows:
1.	The applicant must pay the respondent’s costs of the applicant’s application filed on 8 February 2022, to be assessed on the standard basis.
2.	The applicant shall not be entitled to any reimbursement or indemnity from the assets of the estate in relation to his own costs of the application or the costs ordered to be paid to the respondent.