Wiesac Pty Ltd v Insurance Australia Ltd (No 4)
[2021] QSC 156
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Wiesac Pty Ltd v Insurance Australia Ltd (No 4)[2021] QSC 156
- Add to List
Wiesac Pty Ltd v Insurance Australia Ltd (No 4)[2021] QSC 156
Wiesac Pty Ltd v Insurance Australia Ltd (No 4)[2021] QSC 156
SUPREME COURT OF QUEENSLAND
CITATION: | Wiesac Pty Ltd v Insurance Australia Ltd (No 4) [2021] QSC 156 |
PARTIES: | WIESAC PTY LTD ACN 112 764 584 (first plaintiff) and MURPHY SCHMIDT SOLICITORS (A FIRM) (second plaintiff) v INSURANCE AUSTRALIA LTD ACN 000 016 722 (defendant) |
FILE NO: | BS 538 of 2015 |
DIVISION: | Trial |
PROCEEDING: | Application |
ORIGINATING COURT: | Supreme Court at Brisbane |
DELIVERED ON: | 25 June 2021 |
DELIVERED AT: | Brisbane |
HEARING DATE: | On the papers |
JUDGE: | Flanagan J |
ORDER: | The application is dismissed. |
CATCHWORDS: | APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – APPEAL COSTS FUND – POWER TO GRANT INDEMNITY CERTIFICATE – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where the Supreme Court varied a costs assessor’s certificate on a review pursuant to r 742(1) of the Uniform Civil Procedure Rules 1999 (Qld) – where the review succeeded on the ground that the costs assessor’s decision was manifestly wrong – where the unsuccessful respondents in the review apply for an indemnity certificate pursuant to s 15 of the Appeal Costs Fund Act 1973 (Qld) – whether the Court should exercise its discretion to grant an indemnity certificate Appeal Costs Fund Act 1973 (Qld), s 15, s 21 Eversden Pty Ltd v Miladi [2015] QCA 203, applied Gregg Lawyers Pty Ltd v Viki Maree Farrar (No 2) [2016] QDC 57, cited |
COUNSEL: | No appearance for the plaintiffs No appearance for the defendant |
SOLICITORS: | Synkronos Legal for the plaintiffs No appearance for the defendant |
Background
- [1]On 1 June 2018, Davis J gave judgment for the defendant in this proceeding. On 9 August 2018, his Honour ordered that the plaintiffs pay the defendant’s costs of the proceeding on the standard basis. On 19 February 2021, the Court heard the defendant’s application to review a decision included in the costs assessor’s certificate of assessment pursuant to r 742(1) of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR). On 16 April 2021, judgment was granted in the defendant’s favour and orders varying the certificate of assessment were made. The plaintiffs were ordered to pay the defendant’s costs of the application on the standard basis.[1]
The present application
- [2]On 30 April 2021, the plaintiffs filed a document that purports to be both an application and outline of argument for the grant of an indemnity certificate pursuant to s 15(1) of the Appeal Costs Fund Act 1973 (Qld) (Act). The application and outline of argument have been compiled as a single document ostensibly because the plaintiffs sought to comply with paragraph 29 of Supreme Court Practice Direction No. 3 of 2013. That paragraph provides:
“An application to the Court for an indemnity certificate under the Appeal Costs Fund Act 1973 (Qld) must be made either orally at the appeal hearing or by way of written outline of argument filed in the registry within 14 days of the delivery of the judgment of the Court. Any such application and supporting written outline must not exceed 2 A4 pages.”
- [3]Paragraph 29 deals with applications to the “Court” which, for the purposes of the Practice Direction, means the Court of Appeal. Therefore, paragraph 29 does not govern applications for indemnity certificates in the trial division of the Supreme Court. Despite this documentary irregularity, the Court will treat the matter as an application for an indemnity certificate under s 15(1) of the Act.[2]
Consideration
- [4]The facts of the case and the Court’s reasons for its decision are set out in the judgment.[3] It is unnecessary to repeat them here but the essence of the Court’s findings is that the costs assessor’s decision to disallow the defendant’s junior counsel’s fees for trial was manifestly wrong.
- [5]Section 15(1) of the Act relevantly provides:
“Where an appeal against the decision of a court –
(a) to the Supreme Court;
…
on a question of law succeeds, the Supreme Court may, upon application made in that behalf, grant to any respondent to the appeal an indemnity certificate in respect of the appeal.”
- [6]An application to review a decision included in a costs assessor’s certificate of assessment pursuant to r 742(1) of the UCPR is capable of falling within the terms of s 15(1) of the Act.[4] Further, the “appeal” in the present proceeding was “on a question of law” because the central issue for the Court was whether the costs assessor’s decision was “manifestly wrong”.
- [7]The grant or refusal of an indemnity certificate is a matter of discretion for the Court.[5] The relevant principles were set out by the Court of Appeal in Eversden Pty Ltd v Miladi:
“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. 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. In that regard, the obligation is upon the applicant to show some ground calling for the exercise of the discretion in his favour.”[6]
- [8]The plaintiffs have not shown any such ground. The plaintiffs submit that, in the present case, “there is no evidence or suggestion that the Applicant Plaintiffs caused or contributed to any error by the Costs Assessor”.[7] I do not accept this submission. In their Form 61 submitted to the costs assessor, the plaintiffs stated:
“… [i]t is the Plaintiffs’ Objection that only a Senior Counsel ought to be allowed on the Trial in any event. The matter did not involve such complexity or volume of material necessitating the division of labor between two Counsel. There was little contentious issues between the various Experts on Liability and as his Honor found there was much more in common between Experts than in contention. The Plaintiffs had only one Counsel at the Trial and while this is not a binding factor for the Costs Assessor, it is a factor to be taken into account in considering whether two Counsel ought to be allowed …”[8]
- [9]The costs assessor ultimately accepted this submission and disallowed the costs of junior counsel. It was this decision that was held to be “manifestly wrong”. This is not a case that calls for the exercise of the Court’s discretion to grant an indemnity certificate.
Disposition
- [10]The application is dismissed.
Footnotes
[1]Wiesac Pty Ltd v Insurance Australia Ltd (No 3) [2021] QSC 69 (Flanagan J).
[2]Uniform Civil Procedure Rules 1999 (Qld) r 371(1).
[3]Wiesac Pty Ltd v Insurance Australia Ltd (No 3) [2021] QSC 69.
[4]Gregg Lawyers Pty Ltd v Viki Maree Farrar (No 2) [2016] QDC 57, [2] (Wall QC DCJ), citing Paroz v Clifford Gouldson Lawyers [2014] QDC 125, [45]-[65] (McGill DCJ).
[5]Appeal Costs Fund Act 1973 (Qld) s 21(1).
[6][2015] QCA 203, [3].
[7]Plaintiffs’ Outline of Argument for Application for Grant of an Indemnity Certificate, paragraph 8.
[8]Affidavit of Andrew Davidson O'Halloran filed 29 January 2020, CD36, exhibit ADO1, page 249.