Cameron v Nominal Defendant

[2000] QCA 137

SUPREME COURT OF QUEENSLAND

CITATION:

Cameron v Nominal Defendant [2000] QCA 137

PARTIES:

GLEN ANDREW CAMERON
(plaintiff/respondent)
v
NOMINAL DEFENDANT
(defendant/applicant)

FILE NO/S:

Appeal No 11527 of 1999
DC No 4677 of 1997

DIVISION:

Court of Appeal

PROCEEDING:

Application for leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

18 April 2000

DELIVERED AT:

Brisbane

HEARING DATE:

27 March 2000

JUDGES:

McMurdo P, Davies JA and Moynihan J
Judgment of the Court

ORDER:

Application for leave to appeal is granted.  The appeal is allowed.  The order made in the District Court on 14 December 1999 as to costs is set aside.  Instead, the following order is made:  That the defendant pay the plaintiff's costs, calculated on the standard basis, up to and including 17 July 1998, and after that date the plaintiff pay the defendant's costs, calculated on the standard basis, to be assessed.
The respondent is granted an indemnity certificate in respect of the application and the appeal under s 15 of the Appeal Costs Fund Act 1973.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – whether application was correctly brought under s 118(3) District Court Act 1967

PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – COSTS OF WHOLE ACTION – WHERE MONEY PAID INTO COURT OR COMPROMISE MADE – OFFER OF COMPROMISE MADE

PROCEDURE – COSTS – APPEALS AS TO COSTS – MISTAKE OF LAW OR FACT – two “offers to settle” made – both offers refused – second offer exceeded judgment – only first offer considered when determining costs at first instance – whether primary judge erred in construing r 361 Uniform Civil Procedure Rules – second offer was the only “offer satisfying subrule (1)”

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – APPEAL COSTS FUND – whether indemnity certificate should be granted under s 15 Appeal Costs Fund Act 1973 – interpretation of new rules

Appeal Costs Fund Act 1973, s 15
District Court Act 1967, s 69, s 69(3), s 118(2), s118(3)
Judicature Act 1867, s 9
Supreme Court Act 1995, s 135, s 253
District Court Rules, r 118(2)
Uniform Civil Procedure Rules, r 5(1), r 360, r 360(2), r 361(1), r 361(1)(a), r 361(2), r 361(4), s 689

Colbert v Beard [1992] 2 QdR 67, followed.
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, considered
Dale v Frugalis DC No 64 of 1998, 23 July 1999, considered.
Maher v Woodman [1999] QCA 233; Appeal No. 6654 of 1998, 22 June 1999, followed.

COUNSEL:

R J Douglas SC for the appellant
W G Everson for the respondent

SOLICITORS:

Walsh Halligan Douglas for the appellant
Rigby & Co for the respondent

1. THE COURT: This is an application for leave to appeal under s 118(3) of the District Court Act 1967 against a costs order made by a District…