Blundstone v Johnson

Blundstone, the appellants, sought leave to appeal a decision extending a limitation period under the Motor Accident Insurance Act 1994 (Qld). Johnson, the respondent, opposed the application for leave to appeal and subsequently applied for costs on an indemnity basis. Johnson had made a Calderbank offer during the proceedings. The primary issue before the court was whether the applicants were entitled to indemnity costs for the unsuccessful application for leave to appeal. This issue required consideration of the circumstances under which indemnity costs may be awarded, including the factors relevant to the making of a Calderbank offer and the nature of the appeal.

The court assessed the respondent's arguments for indemnity costs, noting that the primary judgment was not considered unremarkable and was unanimously supported by the Court of Appeal. The applicants had failed to establish any different legal principle, had abandoned their primary appeal point, and the respondent's claim was modest with only the quantum in issue. The applicants' liability was accepted, and there was no prejudice caused by the respondent's delay. Furthermore, the applicants attempted to transfer their liability to the professional indemnity insurer of the respondent's solicitor. The court distinguished the respondent’s application from Court of Appeal authorities and concluded that the making of a Calderbank offer alone did not justify an order for indemnity costs. The application for leave to appeal was not wholly unmeritorious, was not made for ulterior motives, and was based on relevant authorities.

The court ordered that the applicants were to pay the respondent’s costs of the application for leave to appeal on the standard basis, reflecting the outcome of the unsuccessful application. Conversely, the respondent was to pay the applicants’ costs of the application for indemnity costs. This decision underscores the importance of the specific circumstances in determining the appropriate basis for awarding costs in appeals involving limitation periods and Calderbank offers.