Tep v ATS Australasian Technical Services Pty Ltd
[2013] QCA 213
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- Unreported Judgment
- Appeal Determined (QCA)
- Tep v ATS Australasian Technical Services Pty Ltd[2013] QCA 213
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Tep v ATS Australasian Technical Services Pty Ltd[2013] QCA 213
Tep v ATS Australasian Technical Services Pty Ltd[2013] QCA 213
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Court of Appeal | |
PROCEEDING: | General Civil Appeal – Further Orders |
ORIGINATING COURT: | |
DELIVERED ON: | 2 August 2013 |
DELIVERED AT: | Brisbane |
HEARING DATE: | Heard on the papers |
JUDGES: | Holmes and Gotterson JJA and Douglas J Judgment of the Court |
ORDERS: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – APPEAL COSTS FUND – POWER TO GRANT INDEMNITY CERTIFICATE – WHEN GRANTED – where the appellant’s appeal was upheld on the basis that the trial judge’s finding against him on liability was based on a finding of fact not open on the evidence and made without notice to him – where the appellant applies for his costs of the appeal on the standard basis – whether costs should be awarded – where the respondent applies for an indemnity certificate under s 15 of the Appeal Costs Fund Act 1973 – where the trial judge’s finding which in the circumstances constituted an error of law was contrary to the respondent’s submission at trial – whether in the circumstances the respondent should be granted an indemnity certificate Appeal Costs Fund Act 1973 (Qld), s 15 Tep v ATS Australasian Technical Services Pty Ltd [2013] QCA 180, cited |
COUNSEL: | No appearance by the appellant, the appellant’s submissions were heard on the papers No appearance by the respondent, the respondent’s submissions were heard on the papers |
SOLICITORS: | McNamara & Associates for the appellant MVM Legal for the respondent |
[1] THE COURT: On 12 July 2013, this court allowed the appellant’s appeal[1] against judgment given against him in his action for damages for personal injuries. The appeal was upheld on the basis that the trial judge’s finding against the appellant on liability was based on a finding of fact not open on the evidence and made without notice to him.
[2] The appellant now seeks his costs of the appeal on the standard basis, which he should have. The respondent applies for an indemnity certificate pursuant to s 15 of the Appeal Costs Fund Act 1973, which permits the court to grant a respondent an indemnity certificate where an appeal on a question of law succeeds. The trial judge’s finding, the making of which amounted to error of law in this case, was not the product of, and indeed was contrary to, the submissions of the respondent’s counsel at trial. In those circumstances, the respondent should have an indemnity certificate.
[3] The orders are:
1.The respondent is to pay the appellant’s costs of the appeal.
2.The respondent is granted an indemnity certificate under s 15 Appeal Costs Fund Act 1973.
Footnotes
[1] Tep v ATS Australasian Technical Services Pty Ltd [2013] QCA 180.