Allen v Ruddy Tomlins & Baxter
[2020] QCA 286
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- Notable Unreported Decision
- Allen v Ruddy Tomlins & Baxter[2020] QCA 286
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Allen v Ruddy Tomlins & Baxter[2020] QCA 286
Allen v Ruddy Tomlins & Baxter[2020] QCA 286
SUPREME COURT OF QUEENSLAND
CITATION: | Allen v Ruddy Tomlins & Baxter [2020] QCA 286 |
PARTIES: | KIM MARIE ALLEN (applicant) v RUDDY TOMLINS & BAXTER (respondent) |
FILE NO/S: | Appeal No 3998 of 2018 DC No 367 of 2008 |
DIVISION: | Court of Appeal |
PROCEEDING: | Application for Leave s 118 DCA (Civil) – Further Order |
ORIGINATING COURT: | District Court at Townsville – Unreported: 21 March 2018 (Durward SC DCJ) |
DELIVERED ON: | 11 December 2020 |
DELIVERED AT: | Brisbane |
HEARING DATE: | Heard on the papers |
JUDGES: | Philippides and McMurdo JJA and Henry J |
ORDER: | The application for an indemnity certificate is refused. |
CATCHWORDS: | APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – APPEAL COSTS FUND – POWER TO GRANT INDEMNITY CERTIFICATE – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where the respondent submitted that it ought to be granted an indemnity certificate under s 15 of the Appeal Costs Fund Act 1973 (Qld) – where the appeal succeeded on the basis of an error of the primary judge which may be characterised as an error of law – where the conduct of the respondent below is relevant to the discretion as to whether to exercise the discretion to grant a certificate – whether an indemnity certificate should be granted Appeal Costs Fund Act 1973 (Qld), s 15 Uniform Civil Procedure Rules 1999 (Qld), ch 17A pt 4 Allen v Ruddy Tomlins & Baxter (2019) 1 QR 225; [2019] QCA 103, related Eversden Pty Ltd v Miladi [2015] QCA 203, applied |
COUNSEL: | S Hartwell for the applicant R B Dickson for the respondent |
SOLICITORS: | Corporate First Lawyers for the applicant CBC Lawyers for the respondent |
- [1]PHILIPPIDES JA: In this matter, leave to appeal was granted and the appeal was allowed on 28 May 2019.[1] The Court (by majority) set aside the orders of the District Court and ordered that written submissions as to costs were to be provided. Following the receipt of those submissions, the Court ordered on 6 December 2019 (by majority) as follows:
“The respondent pay the applicant’s costs on a standard basis of and incidental to the application for leave to appeal and appeal; and the proceedings in the District Court commenced by application filed 26 September 2008 and the application filed 6 November 2017, including the costs reserved by the order of 27 November 2017 and 21 March 2018.”
- [2]In its submissions as to costs dated 18 June 2019, the respondent submitted that if, despite its main submission that there should be no order as to costs, the Court ordered that the respondent pay the applicant’s costs on any basis, the respondent:
“… should be granted an indemnity certificate in respect of the appeal under section 15 of the Appeal Costs Fund Act 1973 (Qld), on the basis that the applicant’s appeal against the decision of the District Court to the Supreme Court on a question of law has succeeded.”
- [3]By letter to the Court dated 28 October 2020, the respondent applies for the grant of an indemnity certificate on the basis stated in its submissions. The respondent submits that an indemnity certificate be granted to the respondent on the basis that the appeal succeeded “on a question of law” and, accordingly, applies for the granting of that certificate. For the reasons which follow, it is not appropriate that a certificate be granted.
- [4]It is well established that, even where an appeal succeeds on the basis of an error of the primary judge which may be characterised as an error of law, that does not automatically give rise to an entitlement for the respondent to be granted an indemnity certificate. As this Court (Holmes CJ, Philippides JA and Ann Lyons J (as her Honour then was)) stated in Eversden Pty Ltd v Miladi:[2]
“Section 15 of the Appeal Costs Fund Act is not intended to relieve against the ordinary risk of expense due to litigation loss, but rather is limited to relieving against a particular and limited type of misfortune in litigation.[3] It is relevant to consider the conduct of the respondent at first instance and his responsibility, if any, for the erroneous decision of law for which the application for a certificate is made.[4] In that regard, the obligation is upon the applicant to show some ground calling for the exercise of the discretion in his favour.[5]”
- [5]
“The respondent’s submissions advanced below were central to the primary judge’s decision as to the exercise of his discretion in the respondent’s favour. Having elected to make those submissions, the respondent accepted the risk of their being wrong.”
- [6]That decision is pertinent in this matter, given the respondent’s contention before the primary judge that ch 17A pt 4 of the Uniform Civil Procedure Rules 1999 (Qld) establishes a new regime for the assessment and recovery of legal costs. The contention was accepted by the primary judge and central to the error of law found to have been made by a majority of this Court.[7]
- [7]In the circumstances, it has not been demonstrated that the order made by the Court that the respondent pay the applicant’s costs is anything other than the materialisation of the usual risks of costs following the event in civil litigation. Accordingly, the application for an indemnity certificate should be refused.
- [8]McMURDO JA: I am sorry to say that again, I am unable to agree with the other members of the Court in this case. In my opinion, a certificate under s 15 of the Appeal Costs Fund Act 1973 (Qld) should be granted to the respondent.
- [9]It is right to say that the appeal succeeded on a question of law. It is also right to say that the respondent argued its case before the primary judge upon a basis which this Court has rejected. What must also be acknowledged, however, is that the question of law was a novel one. Accepting, of course, the correctness of the majority on that legal question, the respondent’s case was an arguable one. In those circumstances, it should be granted an indemnity certificate.
- [10]HENRY J: I agree with Philippides JA.