Bucknell v Robins

[2004] QCA 474

SUPREME COURT OF QUEENSLAND

CITATION:

Bucknell v Robins [2004] QCA 474

PARTIES:

PETER ADRIAN WENTWORTH BUCKNELL
(plaintiff/respondent)
v
BRAD ROBINS
(defendant/applicant)

FILE NO/S:

Appeal No 9139 of 2004

DC No 174 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Application for leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

6 December 2004

DELIVERED AT:

Brisbane

HEARING DATE:

26 November 2004

JUDGES:

McMurdo P, Williams JA and Philippides J

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Grant leave to appeal1.    

Extend any necessary time in which to appeal2.    

Allow the appeal with costs to be assessed3.    

Set aside the order at first instance that there be no order as to costs and in lieu thereof order that the respondent pay the applicant’s costs of the action4.    

Grant the respondent a certificate pursuant to s 15 of the Appeal Costs Fund Act 19735.    

CATCHWORDS:

PROCEDURE – COSTS – DISCRETION – where plaintiff sought leave to withdraw proceedings after commencement of trial – where order made that proceedings be dismissed and judgment be entered for the defendant with no order as to costs – whether primary judge erred in ordering that there be no order as to costs – whether error in failing to award successful party costs of the proceedings – whether manifest injustice

Appeal Costs Fund Act 1973 (Qld), s 15
District Court of Queensland Act 1967 (Qld), s 118(3)
Uniform Civil Procedure Rules 1999 (Qld), r 689

ACI Operations Pty Ltd v Bawden [2002] QCA 286, Appeal No 3970 of 2002, 6 August 2002, cited
Giunti v Cavallaro [2004] NSWCA 62, cited
Latoudis v Casey (1990) 170 CLR 534, cited
Mannix v Loumbos Pty Ltd [2000] NSWCA 32, cited
Oshlack v Richmond River Council (1998) 193 CLR 72, applied
O’Neill v Mann [2000] FCA 1680, considered

Robertiello v Di Lione & Anor [2003] QCA 497, Appeal No 3545 of 2003, 14 November 2003, cited

COUNSEL:

A M Pomerenke for the applicant

The respondent appeared on his own behalf

SOLICITORS:

Brian Bartley & Associates for the applicant

The respondent appeared on his own behalf

1. McMURDO P:  I agree with the orders proposed by Philippides J and with both her Honour's reasons and the additional observations made by Williams JA.

1. WILLIAMS JA:  I have had the advantage of reading the reasons for judgment of Philippides J wherein the relevant background facts are broadly set out. 

1. It is of some importance, in my view, to note that the preliminary rulings on admissibility of evidence referred to by Philippides J were related to the manner of presentation of that evidence rather than to the admissibility of evidence of the type in question. For example, the learned trial judge made it clear to the respondent that a letter from a solicitor containing an expression of opinion was not admissible. The primary rule was that oral evidence had to…