SUPREME COURT OF QUEENSLAND

[1] THE COURT:  When the reasons for judgment in this appeal were published on 27 April 2005 (Martin v Rowling & Anor [2005] QCA 128), each party was given leave to make written submissions with respect to costs orders in respect of the appeal and the order for costs in respect of the trial of the proceeding that took place in February 2004 (“the first trial”).

[2] The appellant is the plaintiff in a claim for damages for personal injuries arising out of a motor vehicle accident.  Liability was not in issue at the first trial.  The issue was the quantum of damages.  The appellant had appealed against the learned trial judge’s assessment of damages.

[3] The appellant was successful in her appeal in obtaining orders that the appeal be allowed, the judgment in her favour given on 9 June 2004 be set aside, the orders for costs made on 8 September 2004 be set aside and the proceeding be remitted to the Trial Division for a new trial.

Orders sought by the respondent

[4] The respondent applies for an indemnity certificate pursuant to s 15 of the Appeal Costs Fund Act 1973 (Qld) (“the Act”) on the basis that the appeal succeeded on a question of law, namely insufficient reasons for judgment by the learned trial judge.  The respondent accepts that it should pay the appellant’s costs of the appeal, but submits that the costs of the first trial be at the discretion of the trial judge, upon the retrial.

Orders sought by the appellant

[5] The appellant agrees with the order that is proposed by the respondent that the respondent pay the appellant’s costs of the appeal.  The appellant makes no submissions with respect to the respondent’s application for an indemnity certificate.

[6] With respect to the costs of the first trial, the appellant contends primarily for an order that the respondent should pay the appellant’s costs of the first trial on the basis that it was the manner in which the respondent conducted its case at the first trial that was a substantial cause of the need for a new trial.

[7] If the Court concludes that the conduct of the respondent is not such as to require an order that the respondent pay the appellant’s costs of the first trial, the appellant contends that the costs of the first trial ought to be the appellant’s costs in the proceeding, so that the appellant is not required to pay the respondent’s costs of the first trial, regardless of the outcome of the new trial.

[8] As a third alternative, the appellant submits that, as approximately two-thirds of the first trial was occupied by the issue concerning the cessation of the employment of the appellant with Merck Sharpe and Dohme which did not have any material impact on the outcome of the trial, the respondent should be ordered to pay two-thirds of the appellant’s costs of the first trial and the balance of the costs of the first trial should be determined by the trial judge who hears the new trial.

[9] The appellant also submits that the costs of the proceeding to date, other than the costs of the first trial, should be in the discretion of the trial judge who hears the new trial.

Costs of the first trial

[10]  The usual rule when a new trial is ordered is that the costs of the first trial will be made to abide the result of the new trial: Malpas v Malpas (1885) 11 VLR 670, 710; Brown v Mahony [1967] Qd R 592, 598.  These authorities also suggest that where the need for a new trial has been caused by the conduct of one of the parties, it may be appropriate that that party pay the costs of the abortive first trial.

[11]  Although there are criticisms in the respective reasons of Fryberg and Mullins JJ (at paragraphs [20], [21], [29] and [77]) of the manner in which the respondent conducted its case at the trial, ultimately the errors identified by the majority in the learned trial judge’s reasons were not made at the urging of the respondent.

[12]  Although the proceeding has been remitted to the Trial Division for a new trial, it is still possible that the parties in conjunction with the trial judge who presides over the new trial may be able to agree upon the extent to which the evidence from the first trial may be relied upon in the new trial or that substantial use is otherwise made of the evidence from the first trial.

[13]  In these circumstances, it would be fair to leave the costs of the first trial in the discretion of the trial judge for the new trial.  The matters that the appellant seeks to rely on to secure a costs order that is favourable to her in respect of the first trial would still be able to be advanced after the new trial has concluded.

Indemnity certificate

[14]  The appeal has been successful on errors of law in circumstances where discretionary factors do not require an indemnity certificate to be refused.  In the circumstances such a certificate under s 15 of the Act should be granted to the respondent in respect of the appeal.

Orders

[15]  The orders should be:

1.The respondent must pay the appellant’s costs of Appeal No 5840 of 2004.

2.The costs in respect of the trial of the proceeding that took place in February 2004 be determined by the trial judge at the conclusion of the new trial of the proceeding.

3.Grant the respondent an indemnity certificate pursuant to s 15(1) of the Appeal Costs Fund Act 1973 (Qld) in respect of Appeal No 5840 of 2004.

[16]  It is unnecessary to make any order in respect of the other costs of the proceeding to date, as they will be in the discretion of the trial judge who hears the new trial.