Allen v Ruddy Tomlins and 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

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.”
[1]Allen v Ruddy Tomlins & Baxter (2019) 1 QR 225.
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.”
By letter to the Court dated…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Allen v Ruddy Tomlins and Baxter

Details

AGLC: Allen v Ruddy Tomlins and Baxter [2020] QCA 286
Case: [2020] QCA 286
Decision Date: 11 December 2020

CaseChat Overview and Summary

The case of Allen v Ruddy Tomlins and Baxter involved a dispute where the appellant sought an indemnity certificate under section 15 of the Appeal Costs Fund Act 1973 (Qld). The appellant succeeded in their appeal, which was based on an error of law made by the primary judge. The central issue for the court was whether the respondent, who was the appellant below, should be granted an indemnity certificate to cover their costs incurred during the appeal process. The court had to consider the general principles governing the grant or refusal of such certificates and assess the conduct of the respondent during the original proceedings.

The court examined the principles that guide the exercise of discretion in granting an indemnity certificate. Key considerations included whether the appeal was successful on a point of law, the conduct of the parties during the original proceedings, and whether the respondent's position was reasonable. The court noted that while the appeal succeeded on an error of law, this alone was not determinative. Instead, the conduct of the respondent in the original proceedings played a crucial role in the decision-making process. The court found that the respondent's conduct was not sufficiently reasonable to warrant the granting of an indemnity certificate.

In its reasoning, the court concluded that the respondent's conduct in the original proceedings was not such that it warranted an indemnity certificate. The court emphasised that while the appeal was successful on a point of law, the respondent's actions were not reasonable, and thus did not merit the relief sought. Consequently, the application for an indemnity certificate was refused. The court's decision was grounded in the need to balance the interests of both parties and the importance of ensuring that indemnity certificates are awarded only in appropriate circumstances.

The final orders of the court were that the application for an indemnity certificate was refused. The respondent was not granted the relief sought and would therefore be responsible for their own costs incurred in the appeal process.

Orders

Orders of the court

The application for an indemnity certificate is refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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