Irving v Pfingst
[2022] QCA 19
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- Unreported Judgment
- Appeal Determined - Special Leave Refused (HCA)
- Irving v Pfingst[2022] QCA 19
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Irving v Pfingst[2022] QCA 19
Irving v Pfingst[2022] QCA 19
SUPREME COURT OF QUEENSLAND
CITATION: | Irving v Pfingst & Anor [2022] QCA 19 |
PARTIES: | TERRY IRVING (appellant) v HELEN MAREE PFINGST (first respondent) STATE OF QUEENSLAND (second respondent) |
FILE NO/S: | Appeal No 10781 of 2020 SC No 234 of 1999 |
DIVISION: | Court of Appeal |
PROCEEDING: | General Civil Appeal – Further Order |
ORIGINATING COURT: | Supreme Court at Brisbane – [2020] QSC 280 (Brown J) |
DELIVERED ON: | 18 February 2022 |
DELIVERED AT: | Brisbane |
HEARING DATE: | Heard on the papers |
JUDGES: | Fraser, McMurdo and Mullins JJA |
ORDER: | The respondents pay 50 per cent of the appellant’s costs of the appeal. |
CATCHWORDS: | APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where the appeal was allowed and the appellant sought an order for the costs of the appeal – where the appellant succeeded in obtaining judgment for damages to be assessed for a claim for malicious prosecution and was unsuccessful on his appeal against the judgment in favour of the respondents on the second claim for malicious prosecution – where the respondents sought to pay no more than 20 per cent of the appellant’s costs of the appeal – where a broad assessment was made to reflect the distinct success of both parties on the appeal Irving v Pfingst & Anor [2021] QCA 280, related Nine Network Australia Pty Ltd & Ors v Wagner & Ors [2021] QCA 84, cited |
COUNSEL: | G R Mullins, with E M Gass, for the appellant S A McLeod QC, with M R Wilkinson, for the respondents |
SOLICITORS: | Maurice Blackburn Lawyers for the appellant G R Cooper, Crown Solicitor for the respondents |
- [1]THE COURT: On publication of the orders and reasons in Irving v Pfingst & Anor [2021] QCA 280, the parties made written submissions on costs in respect of the appeal. At first instance, the appellant’s claims for damages in respect of the first malicious prosecution for the accessory charge and the second malicious prosecution for the robbery charge were dismissed. The result of the appeal was that judgment was entered in the appellant’s favour for damages to be assessed for the claim for the first malicious prosecution.
- [2]The appellant seeks an order that the respondents pay the appellant’s costs of the appeal, as the appellant succeeded on the appeal (even though it was only in relation to the first malicious prosecution) and that justified an order for costs on the usual basis that costs follow the event. The appellant relies on Courtney v Chalfen [2021] QCA 25 at [4]-[5].
- [3]The respondent submits that the costs order should reflect the appellant’s limited success in the appeal which it describes as success on two only of nine grounds of appeal and only in relation to the first malicious prosecution which was limited in time to the period between 18 and 25 May 1993 in circumstances where the second malicious prosecution claim covered most of the appellant’s period of imprisonment and was the larger component of the appellant’s claim for damages in the proceeding. The respondents rely on the principles summarised in Speets Investment Pty Ltd v Bencol Pty Ltd (No 2) [2021] QCA 39 at [11]-[17]. The respondents therefore seek an order that they pay no more than 20 per cent of the appellant’s costs of the appeal.
- [4]It is the circumstances relating to the particular appeal that determine which principles relating to the exercise of the discretion to award costs should be applied. It is a significant outcome of the appeal that the appellant was vindicated in respect of his claim against the respondents for the first malicious prosecution which is a matter of public interest. It is not to the point that the damages ultimately awarded in respect of that claim may be modest in comparison to what the appellant was seeking to recover, if he had been successful on both claims for malicious prosecution.
- [5]In this case, a consideration of the degree of success on the respective grounds of appeal does not give a true reflection of the proportion of the appeal that was concerned with the first malicious prosecution. Some of the factual matters relating to the second malicious prosecution had to be canvassed on the appeal to put submissions in respect of the first malicious prosecution into context. The submissions on the law in relation to a claim for malicious prosecution were largely directed at the claim for the first malicious prosecution. The appeal in relation to the second malicious prosecution was based, in part, on the appellant’s arguments in respect of the trial judge’s finding of credibility of Ms Pfingst in respect of the first malicious prosecution. The overall impression from the hearing of the appeal is that the greater proportion of the appeal was connected with the first malicious prosecution.
- [6]Balanced against the distinct success the appellant had on the appeal in respect of the first malicious prosecution is the respondents’ significant success in maintaining its judgment for the dismissal of the claim for the second malicious prosecution.
- [7]This is an appropriate case for making a “broad assessment” in respect of the appeal “so as to make proportionate orders reflecting relative success or successes on the appeal, or lack thereof”: see Nine Network Australia Pty Ltd & Ors v Wagner & Ors [2021] QCA 84 at [15].
- [8]Taking into account the circumstances of this appeal and the outcomes outlined above, an appropriate order for costs that reflects the distinct successes of both parties on the appeal is that the respondents pay 50 per cent of the appellant’s costs of the appeal.