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Beardmore v Franklins Management Services Pty Ltd

 

[2002] QCA 60

Reported at [2003] 1 Qd R 1

SUPREME COURT OF QUEENSLAND

CITATION:

Beardmore v Franklins P/L [2002] QCA 60

PARTIES:

JULIE BEARDMORE
(plaintiff/respondent)
v

FRANKLINS MANAGEMENT SERVICES PTY LTD
ACN 000 052 077
(defendant/appellant)

 

FILE NO/S:

Appeal No 4953 of 2001

DC No 698 of 1999

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

19 March 2002

DELIVERED AT:

Brisbane

HEARING DATE:

13 February 2002

JUDGES:

McMurdo P, McPherson JA, Ambrose J

Separate reasons for judgment of each member of the Court; McMurdo P and Ambrose J concurring as to the orders made, McPherson JA dissenting 

ORDER:

Appeal dismissed with costs to be assessed

CATCHWORDS:

APPEAL AND NEW TRIAL –  APPEAL – GENERAL PRINCIPLES – EXCESSIVE OR INADEQUATE DAMAGES – PERSONAL INJURY OR DEATH CASES –  where District Court action – where damages awarded within Magistrates Court jurisdiction – where costs awarded on lower District Court Scale – where no difference in Magistrates Court Scale of fees between indemnity and standard costs – whether Judge had discretion to award costs on District Court Scale – whether Cameron v Nominal Defendant was wrongly decided

TORTS – NEGLIGENCE – DUTY OF CARE – REASONABLE FORESEEABILITY OF DAMAGE – PARTICULAR CASES – DUTY OF OCCUPIERS – action for damages for personal injury – where shopper injured in supermarket aisle by well-laden shopping trolley being pushed by child – where child’s parent not joined as defendant in the action – where child had been pushing trolley quickly up and down aisle and riding on it while making “racing car” noises – where child had been “acting uncontrollably” for half to three quarters of an hour prior to injuring the plaintiff – where parent apparently not exercising reasonable control over child’s behaviour – where child had previously bumped into older lady with trolley – whether supermarket staff knew or ought to have known of child’s behaviour – whether supermarket staff had duty to act where child accompanied by parent – whether duty breached – whether injury reasonably foreseeable

TORTS – NEGLIGENCE – DUTY OF CARE – SPECIAL RELATIONSHIPS AND DUTIES – OCCUPIERS

District Court Act 1967 (Qld), s 69(3), s 118(3)

Occupiers Liability Act 1957 (Eng), s 2(1), s 2(3)

Supreme Court Act 1995 (Qld), s 241, s 242, s 253

Uniform Civil Procedure Rules (Qld), r 360, r 361, r 698, r 704, sch 2, sch 3

Australian Safeway Stores Pty Ltd v Zaluzna (1986-1987) 162 CLR 479, considered

Cameron v Nominal Defendant [2000] QCA 137, Appeal No 11527 of 1999, 18 April 2000, considered

Carmarthenshire County Council v Lewis [1955] AC 549, considered

David Jones (Canberra) Pty Ltd  v Stone (1970) 123 CLR 185, considered

Hackshaw v Shaw (1984) 155 CLR 614, considered

Indermaur v Dames (1866) LR 1 CP 274, considered

Re: Golden Casket Art Union Office [1995] 2 QdR 346, considered

The Wagon Mound (No 2); Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty & anor [1967] 1 AC 617, considered

Wormald v Schintler & anor [1992] QCA 311; CA No 22 of 1992, 23 September 1992, considered

Znoski v Shop-Rite Supermarkets Inc (1973) 300 A 2d 164, considered

COUNSEL:

S C Williams QC, with A G Munt, for the appellant

M Grant-Taylor SC, with M J Drysdale, for the respondent

SOLICITORS:

McInnes Wilson for the appellant

Lang Hemming & Hall (Brisbane) for the respondent

  1. McMURDO P: Late one February morning the respondent was shopping with a trolley in Franklin's Supermarket, Brookside.  She bent down to look at some canned peas, heard a yell, turned around and was hit by a shopping trolley pushed by a five or six year old boy.  She suffered a back injury.
  1. The learned trial judge found in his ex tempore reasons that the boy, apparently shopping with his mother in the appellant's supermarket, was:

"… acting uncontrollably at one time pushing a trolley of goods quickly along an aisle in which the plaintiff was, whilst making loud noises as if imitating a racing car.  He was jumping on and off some part of the trolley during this process, apparently at some time riding on it."[1]

His Honour also found that:

"… there were a number of staff members in the store at the relevant time who either saw and heard, or at least ought to have seen and heard, what went on.[2]

This was no mere case of a child being boisterous, as children are known to do, because of the involvement of the partially loaded trolley and the extreme extent of the behaviour generally.[3]

… the mother could have been asked by a staff member to restrain the child and to have kept a vigilant lookout to see that the child was and continued to be restrained.  If this did not achieve the desired effect, the trolley could simply have been taken hold of by a staff member to impede its progress.  This would have avoided the plaintiff's injury.

It is patently obvious, in my view, that the store failed in its duty of care to the plaintiff … ."[4]

  1. The appellant contends there was no evidence upon which the judge could conclude the child was "acting uncontrollably" and no basis in fact to allow the judge to reach the conclusions set out above.
  1. An occupier of premises such as the appellant owes a duty to take reasonable care for the safety of an entrant on its premises if there is a relationship of sufficient proximity between the occupier and the entrant. It is not contentious here that the appellant owed a duty of care to the appellant, a shopper in its store, to avoid reasonably foreseeable risks of injury to her. The appellant had a duty to keep its supermarket premises as safe for the purpose of shopping as the exercise of reasonable care and skill can make them.
  1. The appellant emphasises that the mother of the boy owed a duty of care to others to act reasonably to control his conduct so as to avoid exposing people or property to injury: Smith v Leurs & ors.[5]
  1. That principle is uncontentious but it does not exempt the appellant from liability where it is aware that a child in the company of its mother is behaving in a way which demonstrates a reasonable foreseeability of a real risk of injury to other shoppers in the store. This action was commenced against the appellant, not the mother; the appellant cannot escape liability to the respondent simply because the mother had a duty to act reasonably to control the child, so as to avoid injury to others.
  1. It is necessary to review the evidence to determine whether the judge was entitled to find that the appellant breached its duty of care to the respondent. If the appellant knew or ought to have known the child was acting in a way that could reasonably foreseeably be a real risk to others in the store, it had a duty to act reasonably to avoid that risk.
  1. The respondent's unchallenged evidence was that her shopping expedition commenced in the first aisle where she noticed a five or six year old child "throwing some sort of tantrum and he was making a very big noise". She said:

"… he had the trolley which had quite a few groceries in and he had been running up and down the aisles and as he was running up and down the aisles … he was yelling out.  I guess it's about – like kids were playing with, you know, racing cars or whatever and he was just screeching out basically as he was running up and down the aisles.  He was making the sound of a racing car and screeching brakes and all that sort of thing as he was going up and down the aisles. …

… pushing the trolley and jumping on it and kind of riding it like a car or whatever and making those sounds, screeching sounds, and then he was screeching – jumping off and sort of making screeching sounds like brakes and he was very loud. …

He was just going up and down the same aisle.

He was riding on the trolley and he had jumped off the trolley and was trying to pull the trolley up and he almost did, but he didn't quite pull it up in time and he nudged it into an older lady."

  1. The respondent was in the store for about half to three quarters of an hour before she was struck with the trolley. In that period she saw at least two of the appellant's staff on a ladder and other members of the appellant's staff on the floor packing shelves. Some of the staff members were packing the shelves in the first aisle where the child was riding on the trolley but none of them spoke to the child or the mother. She was asked whether any staff member saw the child pushing and riding the trolley before she was injured and replied:

"Well, I can with certainty say one did because it was a young girl who was up on the ladder and I particularly remembered making eye contact with her because we were both looking at this child and we sort of looked at each other as much to say, you know, this is a rotten little kid who is making a lot of noise."

  1. Over the course of about three or four aisles she moved ahead of the mother and boy who were about half an aisle behind her. There was then a short lull during which she did not hear the child. In the fourth aisle, apparently before the boy had entered that aisle, she bent down to look at some tinned vegetables close to the floor. She heard a yell behind her and turned to see the boy with the shopping trolley which was "quite full" heading towards her. The shopping trolley hit her in the lower back with "quite a bit of impact". The child was pushing the trolley but "wasn't really in control of it. … It looked like the trolley was dragging him." She was pushed forward into the shelf, her finger caught on some wire shelving and both she and some canned vegetables fell to the floor. She felt stunned and thought she saw stars. She was assisted by a member of staff. Another staff member then completed an accident form. No further mention was made of the boy and his mother. She rested outside the supermarket before returning home and phoning her doctor in considerable pain.
  1. Whilst another judge may have taken a different view of the facts, on this uncontested evidence it was open to infer that the child was "acting uncontrollably" when he was riding on the trolley in the first aisle, especially when the boy could not pull up the trolley and it nudged the older shopper. It is true that there is no direct evidence from the respondent that a member of staff actually saw the trolley nudge the customer. But the evidence was that members of staff were in the aisle when this occurred and that one member of staff made eye contact indicating she had observed the child's unacceptable behaviour, although not necessarily the nudging with the trolley. On these facts, it was open to the judge to infer that members of the appellant's staff "either saw and heard, or at least ought to have seen and heard, what went on." The judge's conclusion on liability strongly suggests that his Honour's concept of "what went on" included the child losing control of the trolley and nudging an older shopper with it. As the learned primary judge noted, on his findings this was "no mere case of a child being boisterous, … because of the involvement of the partially loaded trolley and the extreme extent of the behaviour generally".[6]
  1. The judge was entitled to conclude that on the respondent's unchallenged evidence, which was accepted by him without reservation, the child's use of the trolley constituted a reasonably foreseeable risk of injury to other shoppers in the store. His Honour found the appellant should have asked the mother to restrain the child, kept a vigilant lookout to see the child was acting safely, and if not, had a staff member control the trolley. Ultimately, the appellant could have asked the mother and child to leave the supermarket. The risk to others from the negligent handling of a well-laden shopping trolley is not farfetched or fanciful but real and was likely to have been prevented by the simple and apparently economical measures suggested by the judge.[7]  On these facts, the appellant breached its duty of care to the respondent and as a result the respondent was injured. 
  1. Grocery shopping can be a harrowing experience requiring tolerance, patience, care and some skill in manipulating wayward trolleys in crowded aisles. But shoppers ought to be protected from impacts at speed with well-laden, out of control trolleys negligently pushed by children or adults, where the supermarket was or ought to have been aware of the negligent behaviour. Of course, accidents regularly happen without negligence on anyone's part. Tired, bored children and their harassed care-givers are a common enough dynamic of supermarket shopping which should ordinarily call up the compassion and assistance of fellow shoppers, not complaints. But if supermarket staff have effective notice of reasonably foreseeable dangerous behaviour from shoppers or their children, it is the supermarket's legal obligation to make reasonable attempts to curb such behaviour which may not only place their shoppers at risk but also their employees. Staff members should be alive to potentially dangerous behaviour like that found by the primary judge here. Supermarkets should have a system in place to ensure reasonable action is taken to prevent potentially dangerous conduct, even where, as here, there was no customer complaint. Junior members of staff, who might feel uncomfortable or not have the necessary interpersonal skills to request customers to handle the trolley responsibly could report the matter to a more senior or experienced staff member for appropriate action.
  1. The appeal as to liability must fail.
  1. The appellant next appeals against the order of the trial judge as to costs.
  1. Section 253 Supreme Court Act 1995 (Qld) relevantly provides:

"No order made by any judge of the said Court … as to costs only … shall be subject to any appeal except by leave of the judge making such order."

  1. In Cameron v The Nominal Defendant[8] this Court held that s 253 Supreme Court Act 1995 (Qld) has no application to orders for costs from a District Court judge.  The respondent submits that case was wrongly decided because the Court was not referred to s 242 Supreme Court Act 1995 (Qld) which provides:

"The several rules of law enacted and declared by this Part shall be in force and receive effect in all courts whatsoever in Queensland so far as the matters to which such rules relate shall be respectively cognisable by such courts."

  1. The appellant contends that the effect of that section is to apply s 253 to orders for costs made by District Court judges so that an appeal solely from a District Court judge's costs order can only be made with leave of that judge. Section 241 Supreme Court Act 1995 (Qld) defines "court" as "the Supreme Court".  There is no doubt that "court" in s 253 refers to the Supreme Court.  The relevant effect of s 242 is to require all courts in Queensland to take cognisance of the fact that orders as to costs only of judges of the Supreme Court can not be subject to appeal except by leave of the judge making the order.  Section 242 does not, in my view, affect the correctness of the decision in Cameron v The Nominal Defendant.
  1. I agree, however, with McPherson JA that it would be most desirable for the Rules Committee to consider whether appeals on questions of costs should be subject to a single uniform rule, consistent with the aims of the UCPR.
  1. Here, leave to appeal was given under s 118(3) District Court Act 1967 without limiting leave to the liability issue.  It must therefore be assumed that leave was given to also litigate the question of the costs order.
  1. I turn then to the appellant's substantive argument as to the costs order. Although the respondent was awarded damages of $41,806.22, an amount which was within the jurisdiction of the Magistrates Court, the judge awarded costs on the lower District Court Scale and gave no reasons for this other than to say "Taking all of the circumstances into account, gentlemen, it seems to me appropriate".
  1. UCPR r 698 relevantly provides:

"698(1)  Subrule (2) and (3) apply unless the court otherwise orders.

(2)  If the relief obtained by a plaintiff in a proceeding in the Supreme Court or District Court is a judgment that, when the proceeding began, could have been given in a Magistrates Court, the costs the plaintiff may recover must be assessed as if the proceeding had been started in the Magistrates Court. …"

  1. Generally, if the plaintiff recovers a judgment within the jurisdiction of the Magistrates Court under UCPR r 698(2), the costs order will be on the Magistrates Court Scale although UCPR r 698(1) gives the court a discretion to order otherwise.
  1. In this case, the respondent made an offer to settle under the UCPR for $20,000. Her award considerably exceeded this and she would ordinarily be entitled to indemnity costs from the appellant: UCPR r 360. We are told that there is no difference in the Magistrates Court Scale of Fees between indemnity and standard costs. Apparently in the spirit of encouraging acceptance of offers to settle under Part 5 UCPR, the judge awarded costs on the lowest District Court Scale to be assessed. This was a proper exercise of the discretion given under UCPR 698(1) in circumstances where the amount recovered was less than 20 per cent below the upper jurisdictional limit of the Magistrates Court.
  1. The appeal against the costs order should also be dismissed.
  1. I would order that the appeal be dismissed with costs to be assessed.
  1. McPHERSON JA: The plaintiff Mrs Beardmore went to the defendant Franklins self service store at Brookside Shopping Centre on the morning of 26 February 1996. She had been there for half to three quarters of an hour, and was crouching down to look at the labels on some canned peas which she was considering buying when she was struck in the lower back by a loaded shopping trolley. She sustained an injury to her back for which, in her action in the District Court, she recovered judgment in the sum of $41,806.22.
  1. The shopping trolley was being pushed by a 5 or 6 year old boy. She had seen him not long after first going into the store. He was accompanied by a woman who was presumably his mother. They were then in the first aisle of the store. Mrs Beardmore’s attention was drawn to him mainly by the noise he was making: he was throwing a tantrum of some sort, she said, and was making “a very big noise”. She saw him again after that. He had the trolley with “quite a few” groceries in it and was running up and down the aisles and yelling out very loudly, making the sound of a racing car and screeching brakes “and all that”. She said he was pushing the trolley, jumping on it and kind of riding it like a car, and making screeching sounds like brakes. He was going up and down the same aisle where his mother was. He did not go out of that aisle.
  1. Initially Mrs Beardmore was behind the boy and his mother; but by the time she reached aisle 3 in the shop, she had overtaken them, and by about aisle 4 she was ahead of them by a distance of half an aisle. She did not see the two of them in the aisle where she was later struck, and she had not heard them for a little while. There was a lull, she said, and then she heard a cry, a yell or a scream from the child. She looked around and saw the child right behind her. Almost immediately after that the trolley struck her. It was then quite full of groceries.
  1. What happened to the child and its mother is not revealed by the evidence. Presumably they decamped after the plaintiff was laid low. It seems clear that, if anyone is legally liable for Mrs Beardmore’s injuries, it is one or both of them. The plaintiff, however, sued Franklins, and the question here is whether it is liable for the injury that was inflicted on the plaintiff not by Franklins but by the child.
  1. The child was not under the control of Franklins. That is sufficient to distinguish this case from that of Carmarthenshire County Council v Lewis [1955] AC 549, where the school authority was in charge and control of a 4 year old boy, who was negligently allowed to escape on to the adjoining highway, where his presence caused the death of a truck driver who swerved to avoid him.  Here the child was in the care and control of his mother, and there was nothing that Franklins could lawfully do to alter that state of affairs. The defendant’s duty was to take reasonable steps to prevent harm to customers from the acts of others using the premises which it knew or ought reasonably have foreseen would or might result in injury to those customers. It was an aspect of its general duty of care in negligence, which attached to it because of its occupation and control of the premises, and which arose from its power to deny entry to and to exclude persons from the shop.
  1. I have formulated the duty of care in this way partly in reliance on some of the American decisions contained in John H Sherry, The Law of Innkeepers (Cornell University Press; revd ed 1981), and in particular the reference, at 314-315, to Sidebottom v Aubrey (1939) 101 SW 2d 212, 213, where it was said that:

“What constitutes ordinary care varies with the nature of the business and the use to which the premises are put, but it is commensurate with the particular circumstances involved in the given case … Since the defendant was not an insurer of the safety of the plaintiff, it was necessary to show either that he knew one of his patrons was about to injure the plaintiff and he failed to exercise ordinary care to prevent such injury, or that the conduct of some of the persons present was such as would lead a reasonably prudent person to believe that they might injure other guests.”

As the title of the textbook suggests, it is concerned among other matters with liability for injuries sustained in inns, hotels, taverns and restaurants, although a similar approach to duty or liability is apparent in the Supreme Court of New Jersey (Appellate Division) in Znoski v Shop-Rite Supermarkets Inc (1973) 300 A 2d 164, which involved a shopping trolley that suddenly emerged from a supermarket and struck the plaintiff on the footpath.

  1. This passing glance at American authorities was prompted by my inquiry in the course of the appeal hearing whether there was any Australian decisions on the somewhat analogous topic of licensed premises. In response, Mr S C Williams QC for the appellant Franklins referred us to the decision of this Court in Wormald v Schintler (CA No 22 of 1992; BC 9202637), in which the plaintiff was successful on appeal in recovering damages from the manager and licensee and the owner of a hotel in Mount Isa for injuries sustained when another patron named Robertson smashed a glass jug into him during a function being conducted by members of a football club and their guests. For about an hour or more before that event, Robertson had been jumping on tables in the lounge where the function was taking place, breaking glass, and molesting other patrons. Eventually he grabbed a woman friend of the plaintiff as she was walking past, which caused the plaintiff to remonstrate with him verbally from a distance; when he went over and tapped him on the shoulder in order to speak to him, Robertson deliberately and without warning hit him with the glass jug.
  1. Apart from the obvious fact that violent behaviour is a common feature of drunken behaviour in public houses, an essential difference between that case and this is that at least two complaints concerning Roberson’s behaviour had, in the half hour before the assault took place, already been made by other patrons to the manager. He, however, took no action, whether by calling the police or otherwise, to impose discipline on Robertson or to eject him from the hotel. After referring with evident approval to the trial judge’s statement that the defendants owed the plaintiff a duty of care to prevent injury to him, Macrossan CJ went on to say that, it was “easy to conclude that as a natural and obviously foreseeable consequence of Robertson’s continuing disruptive and annoying behaviour, some patron would intervene if the licensee did not himself act to quell the offensive behaviour”.
  1. The defendant manager in that case had clear warning of the risk of injury presented by Robertson’s behaviour. The plaintiff here suggests that Franklins occupies a similar position, in terms of liability, to the manager in that case. Several circumstances are relied on to support that conclusion. First, there is the general description of the child’s conduct with the shopping trolley, in the way of pushing it, jumping on it, and riding it like a car. That, however, is of itself not of much significance unless it can be inferred not only that it threatened injury to others, but also that Franklins knew or ought to have known of it. It may fairly be assumed that Franklins became aware, at least in a general way, of what the child was doing if only because of the noises that accompanied his actions. The fact that noisy play of that kind is taking place, is, however, no indication that it poses a risk of injury to others, the more so when there is reason to suppose that the child is in the company of an apparently mature adult like his mother. Franklins must, more than most, be accustomed to the tendency of small children accompanying their mothers in selfservice stores to insist on propelling shopping trolleys containing groceries, and sometimes to put on tantrums when denied the opportunity of doing so. They then become a nuisance and annoyance to everyone including their mothers, but without, so far as common experience goes, becoming a danger to other shop users.
  1. Here, however, the plaintiff submits that Franklins had actual, and not merely imputed, knowledge of the risk of inflicting injury that this child presented. There were, the plaintiff said, members of Franklins staff in the vicinity of the mother and the child with the trolley. At least two of those staff members were standing on ladders packing groceries on to the top shelves in the aisle or aisles where the child was behaving in this fashion. The plaintiff could “with certainty” say that one “young girl” member of the staff saw what was happening because the plaintiff made eye contact with her when they were both looking at the child “and we sort of looked at each other as much as to say, you know, ‘This rotten little kid who was making a lot of noise’ ”.
  1. Several comments may be made about this evidence. One is that it is by no means clear to me that this or the other packers were in fact members of Franklins staff, or of the staff of that particular store. They may equally have been, as such individuals quite often are, persons who came in simply to do the packing, without having any other connection with or possessing any authority in that store, or even in any Franklins store. Still, if the matter were left to turn only on that, it would probably be reasonable to conclude that they were employees rather than outsiders. Franklins called no evidence to rebut what might well be the natural inference in such circumstances. That, however, is not quite the end of that issue. The plaintiff’s case is that the young girl packer in question had or ought to have recognised the risk of injury presented by the child’s activities with the shopping trolley, and should have taken action to stop it. The action which, it was accepted by the trial judge, should “as a matter of common sense” have been taken by a staff member was -

“to ask the mother to restrain the child and to see that the child was and continued to be restrained. If this did not achieve the desired result, the trolley could simply have been taken hold of by a staff member to impede its progress”.

Ultimately, as the plaintiff suggested, if all else failed the mother could have been asked to leave the store, or possibly evicted after reasonable warning of intention to do so.

  1. Whether ejecting into a crowded shopping centre a child equipped with a loaded shopping trolley, knowing the risk of injury he might present to others, would have been a reasonable act on the part of Franklins might well be open to debate. Each of the possible courses of action suggested by the plaintiff seems to me to be fraught with considerable risk of hostile response from the mother. Asking her to restrain her child, or taking hold of the shopping trolley, are not the kind of acts that a junior staff member would reasonably contemplate undertaking on her own initiative unless the danger was obvious. The only reasonable course would have been for her to inform the store manager, who might be expected to be the one having the function and authority of deciding how both the interests of Franklins and the safety of its customers could best be served. Neither the young girl packer, nor any of the other staff members who saw the child playing with the trolley, apparently considered that the child’s activities had reached a stage at which it was necessary to report them to the manager. She or they might quite reasonably not have regarded what they saw as posing any real risk to the safety of the plaintiff or the other customers.
  1. The plaintiff herself did not suggest to the young girl or to any other staff member she saw that there was any such danger. Her interpretation of the young girl’s look as implying that she thought the child “a rotten little kid who was making a lot of noise” may or may not have been accurate; but, even if it was, that interpretation does not convey the impression that either of them considered that the child’s activities threatened anyone there with bodily harm. If the plaintiff thought it necessary that action should be taken to protect herself or others, whether by informing the manager or otherwise, she did not say anything to that effect to anyone on the staff. Both she and the young girl with whom she exchanged glances were, on what the plaintiff said in evidence, concerned about the child’s noisy behaviour and not with any threat of potential injury he might have presented to others in the store. There is, in short, nothing in the exchange of glances to suggest that either of them apprehended danger to their physical safety from the child and the trolley, even though in fact one of them was somewhat exposed by standing on a ladder.
  1. The matter is not one that goes simply to contributory negligence. It is directly relevant to determining whether a state of affairs had arrived at which Franklins ought reasonably to have taken some such action as that suggested by the plaintiff at the trial. In that respect, the present case is very different from Wormald v Schintler, where the manager was expressly and distinctly alerted, and in ample time for action to be taken, to the potential for injury to others from Robertson’s behaviour. There is really no comparison between the injury that may be inflicted by an unruly and aggressive drunk in a public house and an active 5 or 6 year old child pushing a shopping trolley in a supermarket in the company of his mother. In one case the potential injury is readily foreseeable; in the other, it is at most a matter for debate whether a stage has been reached where action is required. As the New Jersey Court said in Znoski v Shop-Lite Supermarkets Inc (1973) 300 A 2d 164-167:

“Every human activity involves some risk of harm but the reasonable probability of having other than a minor accident from the use of [shopping] carts in Shop-Lites operation does not give rise to a duty to take measures against it. See 2 Harper and James, The Law of Torts §16.9 (1956).”

  1. The question here is whether, before the plaintiff was struck by the trolley, there was any perceptible risk of injury against which Franklins ought reasonably to have guarded in the way that was suggested at the trial. The only other evidence to which the plaintiff points is that, on one previous occasion that day, the plaintiff had seen the child, who was riding on the trolley, jump off it and try to pull it up. This he almost, but did not quite, succeed in doing, with the result that “he nudged it into an older lady”. The plaintiff said she remembered thinking then that the Franklins staff should do something about the child. It is not clear that any of the staff saw that particular incident; but neither the older lady nor the plaintiff herself were sufficiently affected either by the experience or by seeing it to mention it to the staff or ask them to take steps to stop it. The plaintiff kept her thoughts about it to herself. This again suggests that, even after that incident, the child’s activities with the shopping trolley, viewed objectively, were not fraught with foreseeable risk of injury to other persons in the store at the time. What eventually happened to the plaintiff was not something that anyone in the store had previously perceived as presenting a risk of personal injury to others; or, if they did, as being a risk of sufficient gravity to require reporting and complaint to the management.
  1. The issue of Franklin’s liability in this case is one that depends on appeal upon the proper inferences to be drawn from evidence that was uncontradicted, and not on any impression formed by the trial judge from having seen the plaintiff give it. For this reason I feel justified in arriving at a conclusion different from that reached by his Honour in holding that the defendant was negligent. In my opinion no occasion had arisen calling for Franklins to warn, restrain or eject this mother and her child in the manner suggested by the plaintiff.
  1. I would allow the appeal with costs; set aside the judgment for the plaintiff; and give judgment for the defendant with costs of the actions. Because of the result I have reached, I do not need to consider whether or not the decision of this Court in Cameron v Nominal Defendant [2000] QCA 137 ought to be overruled. It would, however, be desirable for the  Rules Committee to consider whether appeals on questions of costs from all courts should not expressly be made subject to a single uniform rule.
  1. AMBROSE J: This is an appeal by the operator of a supermarket (“Franklins”) against a judgment given in the District Court at Brisbane, that it was negligent in failing to take any steps to avoid a shopping trolley loaded with goods in its supermarket at Brookside remaining within the physical control of a 5 or 6 year old child, who was observed by its staff to be manoeuvring it in such a way as to pose a risk of injury to shoppers in the supermarket of whom the respondent (“Beardmore”) was one.  There is also an appeal against an order that Franklins pay to Beardmore her costs of the action to be assessed on an indemnity basis.
  1. Beardmore suffered injury to her back when she was struck by that shopping trolley as it was being pushed down an aisle in the supermarket at a fast speed by a 5 or 6 year old boy in the absence of his mother, who was in another part of the supermarket – most probably in an adjoining aisle of the supermarket displaying goods on shelving for sale.
  1. Beardmore at the time of her injury was a 37 year old woman, who had travelled to the supermarket by motor vehicle. She had proceeded to the supermarket and obtained a trolley to contain goods which she might select for purchase. At about the time of her arrival, or shortly afterwards, while she was in the “first aisle” of the shopping centre she heard a noise made by the child who was “throwing some sort of tantrum”. She went about her shopping in various aisles of the supermarket for between 30 and 45 minutes. In the course of her shopping she observed that the child whom she had seen “throwing a tantrum” was running up and down an aisle between rows of shelving in the supermarket pushing a trolley with “quite a few” groceries in it, and “very loudly yelling out” as he did so, making noises intended to imitate those of a racing car, which from time to time had its brakes screeching. The respondent said that from time to time the child while pushing the trolley would jump onto it and would make screeching noises as he jumped off, presumably when he was bringing it to a halt. She gave evidence that she saw him using the shopping trolley in this fashion going up and down the same aisle in the presence of a lady she assumed to be his mother. She said that on one occasion she observed the child riding the trolley down the aisle jump off as he was trying to pull it up; he failed to do so before he “nudged it into an older lady”. The respondent said that she saw at least two staff members of Franklins on ladders packing groceries on shelves on that aisle, and a number of other staff members at ground level packing shelves. She said that some at least of those staff members were in the very aisle where the child was pushing and riding the shopping trolley up and down without any intervention by his mother. She said she did not observe any staff member say anything to either the mother of the child or the child. She said that the child was pushing the shopping trolley and riding on it as it proceeded up and down the aisle between the rows of shelves in the supermarket at a faster than normal walking pace.
  1. After Beardmore had been injured she said a couple of Franklins staff came over to her because she was unable to get up off the floor. They helped her to her feet and a staff member later took details of the accident from her and filled in an accident form.
  1. She said that one of the staff members on a ladder made eye contact with her at a time when the child was making a lot of noise and her facial expression was consistent with her disapproval of his conduct.
  1. It was only Beardmore who gave evidence concerning the events leading to her injury. She said that while she was shopping in Franklins supermarket there were not a lot of customers and it was not very busy. She said that she had little warning of the approach of the child with the shopping trolley before she was injured there had been “a short lull in the noise from the child’s misbehaving”; but she heard a yell behind her as she was crouched down on the floor inspecting groceries and turned to see “for a brief moment the trolley bearing down upon her, the same child holding it in a manner as if the trolley had gotten out of his control”. She said the trolley seemed to be “quite full” of groceries when she observed it but she had it under observation for only seconds before impact.
  1. No evidence was called on behalf of Franklins and the learned trial judge found on Beardmore’s uncontradicted evidence that there were a number of staff members in the store at the relevant time who either saw and heard or at least ought to have seen and heard the child’s activities preceding her injury.
  1. He observed that –

“For the plaintiff to succeed she would need to establish that there was in existence reasonable foreseeability of real risk of injury to her and that the defendant failed to take the steps a reasonable person in the circumstances would have done in response to the risk in an effort to avoid it, and the failure caused the injury.”

  1. The learned trial judge then observed that upon the evidence –

“…the child’s behaviour was such as to give rise to such reasonable foreseeability of injury to any of the shoppers in the store, including the plaintiff.  The defendant was obliged, it seems to me, to take account of any shoppers who might be about and, of course, logically they are of all shapes and sizes and of all dispositions.  This was no mere case of a child being boisterous, as children are known to do, because of the involvement of the partially loaded trolley and the extreme extent of the behaviour generally.”

  1. He drew the “clear inference from all of the evidence…that the defendant did nothing in response to the child’s misbehaviour…”.
  1. He continued –

“One needs to ask the question, what, if anything could it [ie Franklins] or should it have done?  In my view, it is simply a matter of commonsense that the mother could have been asked by a staff member to restrain the child and to have kept a vigilant lookout to see that the child was and continued to be restrained.  If this did not achieve the desired effect, the trolley could simply have been taken hold of by a staff member to impede its progress.  This would have avoided the plaintiff’s injury… There was nothing in the evidence to show that it was impossible or even impracticable for any reason for this to be done.”

  1. His Honour then found that Franklins had failed in its duty of care to Beardmore. He rejected Franklins contention that Beardmore had been guilty of contributory negligence in failing to look out for her own safety.
  1. For Franklins it is contended that its staff members were under no obligation in the circumstances to ask the child’s mother to prevent him from engaging in the activities with the laden shopping trolley, to which I have referred, which ultimately led to Beardmore’s injury.
  1. It was conceded on behalf of Franklins that there was evidence to support the finding of the trial judge that members of its staff did see the way the child was behaving as described by Beardmore, although it was submitted that there was no evidence that any staff member of Franklins had actually seen an elderly lady shopping in the supermarket “nudged” by the trolley when the child failed to bring it to a halt completely before it reached that lady. It was contended that Beardmore ought really to have called some Franklins staff members and asked them to take appropriate steps.
  1. Had the evidence been that Franklins staff were, or may have been, unaware of the manner in which the child was using the shopping trolley, there may have been force in this contention. However, in this case the staff were aware of the child’s dangerous activity with the shopping trolley, and in my view, Beardmore’s failure to request that they take reasonable steps to have that activity discontinued cannot absolve Franklins from liability in negligence for failing to take such reasonable steps.
  1. Counsel for Franklins conceded that members of its staff were in a position to observe the activities of the child described by Beardmore and that it was open to the trial judge to infer that the child was “yelling, screaming, running up and down and pushing the trolley and so on; it was open to the judge to infer that the staff members were aware of that”.
  1. In Wormald v Schintler & anor [1992] QCA 311; CA No. 22 of 1992, 23 September 1992, this Court held that a hotel manager was liable in negligence to a patron of a bar in failing to take reasonable steps to intervene to prevent continuation of dangerous behaviour on the part of another person in the bar, which eventually resulted in injury to that patron who attempted to intervene.  At p5 of the judgment of the Court it was observed –

“In effect, a “powder keg” situation existed and trouble should reasonably have been anticipated.  No significant new factor intruded to distort the operation of predictable causes in the function room on that night.  The plaintiff’s action should not have been viewed as an external factor placing a different complexion upon the pattern of behaviour at the hotel which the licensee was negligently accepting and taking no steps to control.”

  1. It was contended however, on behalf of Franklins in this case, that the child’s mother “had not lost control” and that what the child was doing was not so inherently dangerous as to require intervention by its staff. It was conceded that it would have been inherently dangerous if there were a reasonable possibility that other persons shopping in the supermarket would be injured if the child pushed the trolley into them. It was submitted however, that it was not open to the trial judge to infer from the uncontradicted evidence of Beardmore that there was in fact a reasonable possibility that people shopping in the supermarket would be injured if the child pushed the trolley into them in the course of his activity with it observed by Franklins staff. It was contended upon the evidence that the mother of the child was tolerating what he was doing with the shopping trolley, and before he propelled it into Beardmore’s back his activity had not involved any risk to people shopping in the supermarket to the knowledge of Franklins employees.
  1. It was contended that the mother of the child was not negligent in failing to take steps to prevent her child from engaging in the activity described by Beardmore which lead to her injury.
  1. Ultimately it was conceded – as no doubt it had to be – that if the activities of the child were “dangerous”, there was an obligation on the staff members of Franklins who observed them to take reasonable steps to prevent continuation of that dangerous activity. However, it was contended that any risk to a person shopping in the supermarket arising from the child’s activities was no different from the risk that people must always run from boisterous childish behaviour when in the vicinity of children. It was also contended that if any risk of injury to other shoppers did exist, the obligation was upon the parent of the child to take steps to avoid that risk and Franklins was under no similar duty because the child was under his mother’s control and not Franklins control.
  1. In my view, Franklins, through its staff, did have the right to control the way the shopping trolley that caused injury to Beardmore was used within its supermarket. If they observed that it was being used in a manner putting other shoppers in the supermarket at unreasonable risk of injury, they were under a duty to take reasonable steps to prevent its continued use in that manner.
  1. It is unnecessary and indeed irrelevant to embark upon consideration of who of Franklins or the child’s mother had the legal right to “control” the activities of the child. Franklins clearly had the right to take reasonable steps to control the manner of use of the shopping trolley in its supermarket to avoid unreasonable risk of injury to other persons in that supermarket whether it was under the physical control of the child or that of his mother. Had Franklins staff observed the child’s mother engaging in the activities in which her child engaged before colliding with Beardmore, Franklins in my view, would clearly be liable in negligence to Beardmore if no reasonable steps were taken to bring her activities to a halt before that collision occurred. What steps might be reasonable to bring such activity to a halt, of course, would depend upon whether the dangerous activity was that of mother or child (or both), which needed to be discontinued in the interests of safety.
  1. Initially at least, it seems that it was the child’s mother who had physical control of the shopping trolley as she used it to load up groceries that presumably she selected from the shelves of the supermarket. Upon the evidence it seems clear that she permitted her child to use the shopping trolley in the way Beardmore described, from time to time, for his own amusement during a period of 30 to 45 minutes during which she loaded it with goods she selected from shelving in the supermarket.
  1. Upon the evidence there seems little doubt that she permitted or at least acquiesced in her child pushing and riding upon the partly laden shopping trolley up and down an aisle or aisles of the supermarket for his own amusement. While undoubtedly the child had physical control of the shopping trolley as he was using it as a pretended racing car riding it in aisles of the supermarket, the evidence permits an inference to be drawn that he was then under the control and subject to the direction of his mother who had control of the trolley with Franklins permission at times when she was using it for its intended purpose, which was to load up groceries she selected off the shelves in the supermarket so that she could purchase them before leaving.
  1. For Franklins it was contended that the duty of care imposed upon Franklins “is premised upon and the store is entitled to proceed on the basis that there is a responsible adult controlling this child”. It was further contended, however, that until Franklins had notice that the child’s mother would not control or was not controlling the child in the use of the shopping trolley, it was under no obligation itself to take any steps to impede the activities of the child in the supermarket, preceding Beardmore’s injury. In the course of argument, counsel for Franklins was asked, whether from the way in which the child was using the trolley in the supermarket it might be inferred that it was not being properly controlled and if so whether the only way it could be properly controlled would be for the child’s mother to direct him to stop doing what he had been doing and if necessary to take hold of it and physically control it herself. However, it was contended for Franklins that the trolley was “under control” at all times by the child who upon the evidence was capable of exercising control.
  1. It was contended on behalf of Franklins that there was no evidence to support a finding that the child was not “having his game” with the trolley “in a safe way”.
  1. In Carmarthenshire County Council v Lewis [1955] AC 549 the House of Lords considered the duty of care which an education authority owed to the widow of a truck driver who was killed trying to avoid colliding with a 4 year old boy, who had strayed from a nursery school due to the negligence of persons at the school and had walked upon a roadway in the path of the truck.
  1. It was held that the education authority was in breach of duty and liable in negligence. Lord Goddard at 561 observed –

“The position, then, is that the appellants maintain a nursery and infant school in premises adjoining a highway in a town and are, in my opinion, under a duty to take care that the children themselves neither become involved in nor cause a traffic accident.”

  1. Lord Reid at 566 observed –

“But in this case it was not impracticable for the appellants to have their gate so made or fastened that a young child could not open it, and, in my opinion, that was a proper and reasonable precaution for them to take.”

  1. Lord Tucker at 567 observed –

“…the question was raised whether the appellant council owed any duty in respect of the children in its charge to users of the highway adjoining the school premises as distinct from their duty to the child or its parents…”

  1. His Lordship held that persons in charge of tiny children (the child in question was just under 4 years of age) in premises adjoining a busy highway owe a duty to persons using the highway to take reasonable care to see that such children “… shall not during school hours escape unattended onto such a highway, it being reasonably foreseeable that an accident involving injury to other road users as well as to the children may well result therefrom”.
  1. In Australian Safeway Stores Pty Ltd v Zaluzna (1986-1987) 162 CLR 479 the High Court of Australia, by majority, adopted and applied the new test for occupier’s liability in negligence to lawful entrants propounded by Deane J in Hackshaw v Shaw (1984) 155 CLR 614 at 662 – 3 where after considering whether either one or other or both a special duty and an ordinary duty of care was owed by an occupier to entrants in various categories he observed –

“All that is necessary is to determine whether, in all the relevant circumstances including the fact of the defendant’s occupation of premises and the manner of the plaintiff’s entry upon them, the defendant owed a duty of care under the ordinary principles of negligence to the plaintiff.  A prerequisite of any such duty is that there be the necessary degree of proximity of relationship.  The touchstone of its existence is that there be reasonable foreseeability of a real risk of injury to the visitor or to the class of person of which the visitor is a member.  The measure of the discharge of the duty is what a reasonable man would, in the circumstances, do by way of response to the foreseeable risk.”

  1. In Australian Safeway Stores a plaintiff had slipped on a wet floor as she entered a supermarket.  At 488 in the majority judgment it is observed –

“In the circumstances of the present case, the fact that the respondent was a lawful entrant upon the land of the appellant establishes a relationship between them which of itself suffices to give rise to a duty on the part of the appellant to take reasonable care to avoid a foreseeable risk of injury to the respondent.”

  1. The departure in Australia from the categorisation of entrants to determine the extent of the duty in tort owed to them by an occupier reflects the legislative change made in England by s 2(1) of the Occupiers Liability Act 1957.
  1. In Flemming on Torts 9th ed 507 it is stated –

“The occupier’s power to admit or exclude also places him under a duty of care to control such entrants for the safety of others.” 

  1. As authority for this proposition the author cites Glasgow Corporation v Muir [1943] AC 448 and Chordas v Bryant (1989) 91 ALR 149.
  1. The principles of law applied in the above cases has received statutory recognition in the Occupiers Liability Act (1957) (Eng) which has replaced the common law rules developed following Indermaur v Dames (1866) LR 1 CP 274.
  1. Under that legislation in determining an occupier’s liability for negligence s 2(3) of the 1957 Act directs that –

“The circumstances relevant for the present purposes [ie application of s2(2)] include the degree of care, and of want of care, which would ordinarily be looked for in such a visitor, so that (for example) in proper cases –

(a)an occupier must be prepared for children to be less careful than adults; and…”

  1. In David Jones (Canberra) Pty Ltd  v Stone (1970) 123 CLR 185 it was held that the store proprietor in that case was entitled to assume that a child of tender years using the escalators would be accompanied by an adult who would take reasonable care to safeguard the child against inherent hazards on an escalator, and was not liable to a child for an injury to her finger when she inserted it into a part of an escalator which was in operation.  Such an approach however, would be inappropriate in present case because it is clear on the evidence that Franklins staff were, or should have been, well aware from their observations of the conduct of the child and his mother that his mother was not in fact taking reasonable care to ensure that he did not injure other shoppers in the supermarket (or indeed for that matter himself) by the manner in which she allowed him to use the loaded shopping trolley.
  1. In The Wagon Mound (No 2); Overseas Tankship (UK) Ltd v The Miller Steamship Co. Pty & anor [1967] 1 AC 617 Lord Reid at 642 observed –

“…it does not follow that, no matter what the circumstances may be, it is justifiable to neglect a risk of such a small magnitude.  A reasonable man would only neglect such a risk if he had some valid reason for doing so, e.g., that it would involve considerable expense to eliminate the risk.  He would weigh the risk against the difficulty of eliminating it.”

  1. In this case it was open to the learned trial judge to conclude that the elimination of the obvious risk to Beardmore would have involved negligible, if any, effort or expense to Franklins.
  1. In my judgment, upon the uncontradicted evidence of the respondent, it was open to the learned trial judge to make the findings of fact which he did and to find the appellant guilty of negligence causing injury to her on those findings.
  1. I would dismiss the appeal against those findings.
  1. With respect to the indemnity costs order made, it is contended that the case under appeal was concluded in 1 day with evidence called from only the respondent. It is contended that there were no grounds to support the exercise of any discretion to depart from the usual order for costs contemplated by UCPR 698(2).
  1. Rule 698 deals with orders made for costs of proceedings commenced in the wrong court. That rule reads as follows –

698(1) Subrule (2) and (3) apply unless the court otherwise orders.

(2)If the relief obtained by a plaintiff in a proceeding in the Supreme Court or District Court is a judgment that, when the proceeding began, could have been given in a Magistrates Court, the costs the plaintiff may recover must be assessed as if the proceeding had been started in the Magistrates Court.

(3) If the only relief obtained by a plaintiff in a proceeding in the Supreme Court is relief that, when the proceeding began, could have been given by the District Court, but not a Magistrates Court, the costs the plaintiff may recover must be assessed as if the proceeding had been started in the District Court.”

  1. In applying r 698(2) and (3) the court is clearly given a discretion under r 698(1) to “otherwise order”.
  1. The Magistrates Court had jurisdiction to entertain the respondent’s action provided the relief she obtained (ie the award of damages) did not exceed the jurisdiction of the Magistrates Court.
  1. At material times the Magistrates Court could award damages for negligence for personal injuries suffered by the plaintiff in a sum not exceeding $50,000.
  1. The award of damages recovered by the respondent was $41,806.22. It was ordered that she recover costs on the lowest District Court scale to be assessed however on an indemnity basis.
  1. We were informed that in fact following on negotiations for settlement prior to the matter being tried in the District Court the respondent had offered to settle her claim for the sum of $20,000 plus costs to be assessed. In the ordinary course had the respondent’s offer to settle been accepted she would have received $20,000 plus costs to be assessed on the appropriate Magistrates Court scale.
  1. However, the appellant rejected this offer and the respondent was required to pursue her action to judgment. She obtained judgment of course for more than twice the sum for which she had offered to compromise her claim.
  1. Under the Magistrates Court scale of costs there is no provision for the awarding of indemnity costs. Costs are fixed according to the statutory scale contained in schedule 3 of the Uniform Civil Procedure Rules.
  1. Under UCPR Rule 360 it is provided –

360(1)If –

(a)the plaintiff makes an offer to settle that is not accepted by the defendant and the plaintiff obtains a judgment no less favourable than the offer to settle; and

(b)the court is satisfied that the plaintiff was at all material times willing and able to carry out what was proposed in the offer;

the court must order the defendant to pay the plaintiff’s costs calculated on the indemnity basis unless the defendant shows another order for costs is appropriate in the circumstances.

(2)If the plaintiff makes more than 1 offer satisfying subrule (1), the first of those offers is taken to be the only offer for this rule.”

  1. Under UCPR Rule 704 it is provided inter alia

704(1)The court may order costs to be assessed on the indemnity basis.

(2)

(3)When assessing costs on the indemnity basis, the registrar mustallow all costs reasonably incurred and of a reasonable amount, having regard to –

(a)the scale of fees prescribed for the court; and

(b)any costs agreement between the party to whom the costs are payable and the party’s solicitor; and

(c)charges ordinarily payable by a client to a solicitor for the work.”

  1. The terminology under the Uniform Civil Procedure Rules reflects in essence the difference between “solicitor and client costs” and “party and party costs” under the previous rules. Costs assessed on an “indemnity basis” (“solicitor and client”) are more generous than those assessed on a “standard basis” (“party and party”).
  1. It is conceded by counsel in this case that the difference between indemnity costs and standard costs if they were assessed according to the lowest District Court scale of costs would exceed by about $4,000 costs determined according to the highest Magistrates Court scale of costs – which does not provide a scale for “indemnity” costs.
  1. In my view, the circumstances placed before the learned trial judge during argument on the question of costs were exceptional.
  1. The Magistrates Court scale of costs makes no provision for the awarding of indemnity costs. Even had the respondent commenced proceedings in the Magistrates Court and offered to settle her claim for $20,000, had the appellant rejected that offer and had she recovered judgment in the Magistrates Court for the sum she recovered in the District Court, her offer to settle for less than half the sum recovered would have been disregarded in awarding the costs to which she would have been entitled under the highest scale in that court.
  1. A significant difference between the award of costs in the District Court on the lowest scale (see Schedule 2 Uniform Civil Procedure Rules) and the award of costs in the Magistrates Court on the highest scale under Schedule 3 to those Rules is the significantly higher component of costs recoverable for fees payable to the solicitor for the party recovering costs in the District Court.
  1. The difference between fees payable to counsel in the Magistrates Court under the highest scale and in the District Court under the lowest scale is only about $100.
  1. Had the respondent’s case been conducted in the Magistrates Court, one would think that the actual costs incurred by the respondent – albeit not recoverable under the Magistrates Court scale of costs – would have not been significantly different from those incurred in pursuit of her action in the District Court.
  1. In the absence of an order for indemnity costs the respondent’s legal fees paid to her solicitor would exceed the costs recoverable in the Magistrates Court under the highest scale and would reduce the value of her judgment by about $4,000.
  1. One of the objects of UCPR r 360 and r 361 is to encourage and motivate parties to litigation to make bona fide and reasonable efforts to settle their litigation and to avoid the expense and expenditure of time involved in pursuing a claim to judgment in court.
  1. In my view, it has not been demonstrated by the appellant that the discretion which the learned trial judge exercised under r 698(1) miscarried.
  1. On the assumption then that the appellant had a right to appeal against the order made for indemnity costs I would dismiss that appeal.
  1. However, the respondent also contends that the court has no jurisdiction to entertain the appeal with respect to costs because leave to appeal against it was neither sought from nor given by the District Court judge making the order.
  1. Section 253 of the Supreme Court Act 1995 (formerly s 9 of the Judicature Act 1876), provides –

253.  No order made by any judge of the said court … as to costs only which by law are left to the discretion of the judge shall be subject to any appeal except by leave of the judge making such order.”

  1. In Re: Golden Casket Art Union Office [1995] 2 QdR 346 at 349 this court in dismissing an appeal on the merits dealt also with whether an appeal against an order made for costs could be entertained when no leave to appeal against that order had been given by the trial judge.  At l 25 it was observed –

“Leaving the matter to be decided according to whether an appeal involves a “genuine complaint” would provide a test which it would not be easy to apply.  In any event, it is not the test that the legislature chose to adopt in enacting s. 9, under which leave of the judge who made the order is the criterion of the right to appeal.  The prohibition imposed by s. 9, is it may be emphasised, not directed or confined to an appeal which is only as to costs.  It is not the form of the appeal but the character of the order appealed against that is decisive; if it is an “order… as to costs only” then it may not be the subject of an appeal without leave.”

  1. In Cameron v Nominal Defendant [2000] QCA 137.  This court, considering an application for leave to appeal under s 118(3) of the District Court Act 1967 against a costs order, rejected an argument that s 69(3) of the District Court Act which provided “Subject to this Act and the Rules of Court, the practice and procedure of a District Court or Judge thereof… shall so far as practicable be the same as the practice and procedure of the Supreme Court or a Judge thereof in like matters” gave effect to s 253 of the Supreme Court Act 1995, to which I have referred, requiring leave of the judge making a costs order to appeal against it.  This court observed –

“The argument is novel, but plainly flawed.  Section 69 does not make a costs order of a District Court Judge an order of the Supreme Court; s 253 only applies to specified orders of the Supreme Court; it has no application to a District Court order.

Section 118(2) of the District Court Act 1967 provides a right of appeal from a final judgment of a District Court in its original jurisdiction to the Court of Appeal in certain defined circumstances.  A costs order in the District Court is a final judgment…”

  1. The result in that case was that the defendant was permitted to pursue an application for leave to appeal against the costs order made in the District Court without first having obtained leave of the District Court judge making that order to do so.
  1. However under s 242 of the Supreme Court Act 1995 it is provided –

242. The several rules of law enacted and declared by this part shall be in force and receive effect in all courts whatsoever in Queensland so far as the matters to which such rules relate shall be respectively cognisable by such courts.”

  1. The respondent in this appeal contends that the decision given in Cameron v Nominal Defendant was per incuriam.  It is said that the attention of this court was not drawn to s 242 of the Supreme Court Act 1995 which made the provisions of Part 13 of that Act operative in all courts in Queensland so far as matters to which the rules relate “shall be respectively cognisable” by such courts. 
  1. Section 253 of the Supreme Court Act 1995 clearly falls within Part 13 of that Act.
  1. Although “court” is defined to mean the Supreme Court in s 241 of Part 13 of the Act, to my mind s 242 does have the operation for which the respondent contends. It follows in my view, that s 253 does apply to an order made with respect to costs only, by all courts in Queensland under s 242 and not only to orders for costs made in the Supreme Court of Queensland.
  1. I would distinguish the observations made in Cameron v Nominal Defendant as having been made per incuriam because the express terms of s 242 of the Supreme Court Act of 1995 were not drawn to the attention of this court in that case.
  1. I would therefore dismiss the appeal with respect to the order made for costs on the ground that leave to appeal against it was not obtained from the District Court judge making it.
  1. The District Court judge in any event has not been shown to have erred in the exercise of his discretion in ordering that the respondent’s costs be taxed on an indemnity basis on the lowest of the District Court scales of costs in the circumstances of the case before him.
  1. I would therefore dismiss the appeal.
  1. I would order that the appellant pay the respondent’s costs of and incidental to the appeal to be taxed on a standard basis.

Footnotes

[1] AB 58.

[2] Ibid.

[3] AB 59.

[4] AB 60.

[5] (1945) 70 CLR 256, 262.

[6] AB 59.

[7] Wyong Shire Council v Shirt (1979-1980) 146 CLR 40, 47-48.

[8] [2000] QCA 137, Appeal No 11527 of 1999, 18 April 2000.

Close

Editorial Notes

  • Published Case Name:

    Beardmore v Franklins P/L

  • Shortened Case Name:

    Beardmore v Franklins Management Services Pty Ltd

  • Reported Citation:

    [2003] 1 Qd R 1

  • MNC:

    [2002] QCA 60

  • Court:

    QCA

  • Judge(s):

    McMurdo P, McPherson JA, Ambrose J

  • Date:

    19 Mar 2002

Litigation History

EventCitation or FileDateNotes
Primary JudgmentNA--
Appeal Determined[2003] 1 Qd R 119 Mar 2002-

Appeal Status

Appeal Determined (QCA)
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