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Lawes v Nominal Defendant[2007] QCA 437

Lawes v Nominal Defendant[2007] QCA 437

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NOS:

Court of Appeal

PROCEEDING:

Application for Indemnity Costs – Further Order

ORIGINATING COURT:

DELIVERED ON:

7 December 2007

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Jerrard and Muir JJA and Jones J

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.Application dismissed

2.The respondent pay the appellant’s costs of and incidental to this application for indemnity costs, such costs to be assessed on the standard basis

CATCHWORDS:

APPEAL AND NEW TRIAL  – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where appellant unsuccessful on appeal –  where respondent to the appeal seeks costs on an indemnity basis on the grounds that the respondent made an offer to the appellant shortly after instigation of appeal – whether the Court should depart from the ordinary rule as to costs in this case

Motor Accident Insurance Act 1994 (Qld)

Uniform Civil Procedure Rules 1999 (Qld), Chapter 9, Part 5

Di Carlo v Dubois & Ors [2002] QCA 225, Appeal No 9805 of 2001, 25 June 2002, cited

Greenhalgh v Bacas Training Limited & Ors [2007] QCA 365, Appeal No 3493 of 2007, 26 October 2007, cited

Tector v FAI General Insurance Co Ltd [2001] 2 Qd R 463, cited

Wright & Anor v Keenfilly Pty Ltd [2007] QCA 148, Appeal No 9031 of 2006, 4 May 2007, cited

COUNSEL:

R J Douglas SC, with P B de Plater, for the respondent

D B Fraser QC, with R B Dickson, for the appellant

SOLICITORS:

McNamara Garrahy Lawyers for the respondent

Broadley Rees Lawyers for the appellant

[1] JERRARD JA:  I agree with the reasons and orders given by Muir JA.

[2]  MUIR JA: The successful respondent to this appeal seeks costs on an indemnity basis.  The grounds relied on in support of the application may be summarised as follows:

1. Not long after the institution of the appeal the respondent made a written offer to settle in which he agreed to accept $200,000 (in lieu of the judgment sum of $212,000) plus interest plus the costs of the proceeding at first instance and the costs of the appeal to be assessed on the standard basis.  The offer was not accepted.

2.The appeal was “in the teeth of a carefully reasoned judgment by a senior trial court judge”.

3.The case had the appearance of a test case butthe point of construction of the Motor Accident Insurance Act 1994 (Qld) in issue in the proceeding is a narrow one and not likely to bear on other cases.

4.The amount involved is a modest one and the respondent, a natural person, is not of “generous financial substance”. 

[3] The respondent accepts that the provisions in Chapter 9, Part 5 of the Uniform Civil Procedure Rules 1999 (Qld) relating to formal offers are not applicable to appeals. It is plain that the mere fact that a party making an offer to settle an appeal to the other party achieves a more favourable outcome on the hearing of an appeal does not lead inevitably to an order for indemnity costs.[1]  In my view there is nothing out of the ordinary about this appeal. The offer made was not particularly advantageous: indeed it could be described as having marginal attraction to the appellant. The grounds relied on by the appellant, or at least some of them, were arguable.  There is nothing about the appeal which was unusual or the conduct of the appellant which could be described as unreasonable. Consequently no case has been made out for departing from the ordinary rule that costs be on the standard basis. [2]

[4] I would order that the respondent pay the appellant’s costs of and incidental to this application for indemnity costs, such costs to be assessed on the standard basis.

[5]  JONES J: I have read the reasons of Muir JA. I agree with the orders he proposes.

Footnotes

[1] See eg Greenhalgh v Bacas Training Limited & Ors [2007] QCA 365.

[2] Cf Tector v FAI General Insurance Co Ltd [2001] 2 Qd R 463, Di Carlo v Dubois & Ors [2002] QCA 225, and Wright & Anor v Keenfilly Pty Ltd [2007] QCA 148.

Close

Editorial Notes

  • Published Case Name:

    Lawes v Nominal Defendant

  • Shortened Case Name:

    Lawes v Nominal Defendant

  • MNC:

    [2007] QCA 437

  • Court:

    QCA

  • Judge(s):

    Jerrard JA, Muir JA, Jones J

  • Date:

    07 Dec 2007

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2007] QSC 92 (2007) 48 MVR 12524 Apr 2007Trial of claim for personal injury arising from motor vehicle accident by colliding with horse on freeway; sufficient evidence to establish a prima facie case that the plaintiff’s injuries were caused by an unidentified motor vehicle; judgment for the plaintiff against the nominal defendant: Byrne J.
Primary Judgment[2007] QSC 10303 May 2007Application for costs following trial judgment; application for indemnity costs refused: Byrne J.
Appeal Determined (QCA)[2007] QCA 367 [2008] 1 Qd R 369; (2007) 49 MVR 7426 Oct 2007Appeal dismissed with costs; motorcycle collided with a horse laying on road as a result of a collision with an unidentified vehicle; s. 5(1)(b) Motor Accident Insurance Act did not require that a wrongful act or omission relate directly to one or more of the matters referred to in s. 5(1)(a), but only that there be a discernible and rational link between the basis of legal liability and the motor vehicle concerned: Jerrard and Muir JJA and Jones J.
Appeal Determined (QCA)[2007] QCA 43707 Dec 2007Application for indemnity costs following appeal judgment; offer to settle not attractive; application dismissed: Jerrard and Muir JJA and Jones J.
Special Leave Refused (HCA)[2008] HCATrans 12407 Mar 2008Special leave refused: Kirby and Crennan JJ.

Appeal Status

Appeal Determined - Special Leave Refused (HCA)

Cases Cited

Case NameFull CitationFrequency
Di Carlo v Dubois [2002] QCA 225
2 citations
Greenhalgh v Bacas Training Ltd [2007] QCA 365
2 citations
Tector v FAI General Insurance Co Ltd[2001] 2 Qd R 463; [2000] QCA 426
2 citations
Wright v Keenfilly Pty Ltd [2007] QCA 148
2 citations

Cases Citing

Case NameFull CitationFrequency
Hill v Robertson Suspension Systems Pty Ltd (No. 2) [2009] QDC 3052 citations
Howl at the Moon Broadbeach Pty Ltd v Lamble[2015] 2 Qd R 11; [2014] QCA 741 citation
Remely v O'Shea [2008] QCA 1112 citations
1

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