Brown v Daniels (No 2) - [2018] QSC 232

SUPREME COURT OF QUEENSLAND

CITATION:

Brown v Daniels & Anor (No 2) [2018] QSC 232

PARTIES:

SHAYNE MAXWELL BROWN

(plaintiff)

v
JAY LESLIE DANIELS

(first defendant)

RACQ INSURANCE LTD ABN 50 009 704 152

(second defendant)

FILE NO:

Rock No 826 of 2016

DIVISION:

Trial Division

PROCEEDING:

Trial

DELIVERED ON:

10 October 2018

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Davis J

ORDER:

1. The second defendant pay the plaintiff’s costs of the proceeding assessed on the indemnity basis but excluding any fees or expenses paid to Dr Kahler and any costs associated with obtaining or leading evidence of Dr Kahler which was either admitted into evidence, or proposed to be admitted into evidence.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN THE STATE AND TERRITORY COURTS – COSTS – INDEMNITY COSTS – RELEVANT CONSIDERATIONS GENERALLY – where the plaintiff was successful in the primary judgment – where the second defendant concedes indemnity costs ought be ordered – whether the plaintiff ought recover the costs of an expert’s evidence where that evidence was deemed inadmissible

Brown v Daniels & Anor [2018] QSC 209

Mio Art Pty Ltd v Macequest Pty Ltd & Ors (No 2) [2013] QSC 271, followed

COUNSEL:

A R Philp QC with S Deaves for the plaintiff

M Grant-Taylor QC with C K George for the second defendant

SOLICITORS:

V A J Byrne & Co for the plaintiff

Quinlan Miller & Treston for the second defendant

The plaintiff sued the defendants for damages for personal injuries suffered in an accident on 12 February 2013 near Ubobo. On 14 September 2018 I found for the plaintiff and awarded damages in the sum of $2,098,590.33.[1] On the same day I ordered the parties to file and deliver written submissions on costs and further ordered that costs would be decided without oral argument.
[1] Brown v Daniels & Anor [2018] QSC 209.
Written submissions have now been delivered. For the reasons which follow I will order that the second defendant pay the plaintiff’s costs of the proceedings on the indemnity basis except those costs associated with the evidence of a witness in the case who was to be called to give expert evidence, an engineer, Dr Kahler.
Before the trial various offers were exchanged, the details of which do not matter as the defendant concedes, rightly and properly, that the plaintiff should be awarded costs assessed on the indemnity basis. The defendant though submits that the plaintiff should not recover his costs associated with the evidence of Dr Kahler. While the plaintiff concedes that he should not recover all the costs associated with Dr Kahler’s evidence, he submits that he should receive a proportion of those costs.
Dr Kahler is an engineer. He was retained by the plaintiff to investigate the accident and express opinions as to matters relevant to its cause. He did so and his opinions were the subject of a report which, in redacted form, became an exhibit in the trial.[2] The defendant[3] obtained its…

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 Brown v Daniels (No 2)

Details

AGLC: Brown v Daniels (No 2) [2018] QSC 232
Case: [2018] QSC 232
Decision Date: 10 October 2018

CaseChat Overview and Summary

The case of Brown v Daniels (No 2) involved the plaintiff, Brown, and the second defendant, Daniels, with the dispute centering around indemnity costs within civil proceedings in the state courts. The plaintiff had been successful in the primary judgment, and the second defendant conceded that indemnity costs should be ordered. However, the central issue was whether the plaintiff should recover the costs of an expert's evidence, Dr Kahler, which was deemed inadmissible.

The court had to determine the relevant considerations for awarding indemnity costs, particularly in cases where the plaintiff was successful, and where an expert's evidence was excluded. The court examined the circumstances under which indemnity costs could be ordered and the extent to which the plaintiff could recover costs associated with the inadmissible expert evidence. Given the second defendant's concession, the court focused on the proportionality and fairness of the costs awarded, excluding those related to the inadmissible expert evidence.

The court ruled that the second defendant should pay the plaintiff's costs of the proceeding assessed on the indemnity basis. However, this payment excluded any fees or expenses paid to Dr Kahler and any costs associated with obtaining or leading evidence of Dr Kahler which was either admitted into evidence or proposed to be admitted into evidence. This decision balanced the need to fairly compensate the plaintiff for their successful litigation while ensuring that the second defendant was not unduly penalized for the inadmissible expert evidence.

Orders

Orders of the court

1. The second defendant pay the plaintiff’s costs of the proceeding assessed on the indemnity basis but excluding any fees or expenses paid to Dr Kahler and any costs associated with obtaining or leading evidence of Dr Kahler which was either admitted into evidence, or proposed to be admitted into evidence.

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	Brown v Daniels & Anor (No 2) [2018] QSC 232
PARTIES:	SHAYNE MAXWELL BROWN (plaintiff) v JAY LESLIE DANIELS (first defendant) RACQ INSURANCE LTD ABN 50 009 704 152 (second defendant)
FILE NO:	Rock No 826 of 2016
DIVISION:	Trial Division
PROCEEDING:	Trial
DELIVERED ON:	10 October 2018
DELIVERED AT:	Brisbane
HEARING DATE:	On the papers
JUDGE:	Davis J
ORDER:	1. The second defendant pay the plaintiff’s costs of the proceeding assessed on the indemnity basis but excluding any fees or expenses paid to Dr Kahler and any costs associated with obtaining or leading evidence of Dr Kahler which was either admitted into evidence, or proposed to be admitted into evidence.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN THE STATE AND TERRITORY COURTS – COSTS – INDEMNITY COSTS – RELEVANT CONSIDERATIONS GENERALLY – where the plaintiff was successful in the primary judgment – where the second defendant concedes indemnity costs ought be ordered – whether the plaintiff ought recover the costs of an expert’s evidence where that evidence was deemed inadmissible Brown v Daniels & Anor [2018] QSC 209 Mio Art Pty Ltd v Macequest Pty Ltd & Ors (No 2) [2013] QSC 271, followed
COUNSEL:	A R Philp QC with S Deaves for the plaintiff M Grant-Taylor QC with C K George for the second defendant
SOLICITORS:	V A J Byrne & Co for the plaintiff Quinlan Miller & Treston for the second defendant