Background
Clive Frederick Palmer appealed orders made at first instance arising from his application for judicial review of decisions made by Heather Gibson. The Court of Appeal heard the appeal on 9 March 2026 and disposed of it on 10 April 2026, ordering the respondents to pay 50 per cent of Palmer’s costs. No substantive written or oral submissions on costs were made by any party at that time.
More than six weeks after the costs order was made, Gibson applied to reopen and vary the costs order, seeking to eliminate her liability for costs. She contended that the order was made “in her absence” or denied her procedural fairness because costs were not raised during the hearing and she was given no opportunity to be heard on the issue.
The Court’s Holding
The Court of Appeal dismissed Gibson’s application to vary the costs order. The court held that Gibson was on notice of her obligation to make costs submissions under Practice Direction 3 of 2013, which requires parties wishing to make costs submissions to do so in written outlines of argument and/or orally at the hearing, or to apply for leave to do so at the hearing. Because no such approach was made until more than six weeks after judgment, the contention that Gibson was denied procedural fairness was erroneous.
The court emphasised that Practice Direction 3 serves the obvious purpose of avoiding delay and duplication, enabling the Court of Appeal to finally dispose of appeals and all issues of costs in one judgment. It was not appropriate to reopen the costs order on the basis that Gibson failed to raise the matter within the prescribed timeframe, particularly when she was represented by counsel at the hearing.
Even if the order could have been reopened, the court found Gibson’s submissions were of doubtful force. Although Palmer succeeded on ground 2 of the appeal (in which Gibson was interested), she made no submission on that ground and did not concede the appeal should be allowed in part. Palmer’s ground 2 directly arose from a decision of Gibson, and she made no concession as to its merits.
Key Takeaways
- Parties in Queensland Court of Appeal appeals must raise costs submissions in written outlines or orally at the hearing, or apply for leave to do so then—failure to do so will not later support an application to reopen a costs order.
- The Practice Direction 3 procedure is mandatory and serves important efficiency purposes; represented parties are presumed to know its requirements.
- A party cannot avoid a costs order by claiming lack of opportunity to be heard when procedures for raising costs issues were available but not utilised.
- A party’s absence from addressing a particular ground of appeal does not eliminate her exposure to costs consequences when that ground directly involves her decision.
Why It Matters
This decision reinforces the Queensland Court of Appeal’s strict application of procedural requirements for costs submissions. It clarifies that the court will not reopen costs orders based on parties’ failure to follow established procedures, even when a party argues procedural fairness concerns. The judgment protects finality of appeal judgments and discourages attempts to revisit costs decisions months after the order is made.
For legal practitioners, the case underscores the critical importance of addressing costs in the appeal process itself—through written outlines, at the hearing, or by timely application for leave to make further submissions. Relying on post-judgment applications to vary costs orders is unlikely to succeed, regardless of the substantive merits of a costs argument.