Coffey v State of Queensland

[2009] QCA 256

[2009] QCA 256

COURT OF APPEAL

FRASER JA
CHESTERMAN JA
WHITE J

Appeal No 3941 of 2009
SC No 493 of 2007

JOHN LAWRENCE COFFEY

Plaintiff
(Appellant)

and

STATE OF QUEENSLAND

and

POLICE OFFICER RON MENTJES

and

POLICE OFFICER DAVID McKENZIE

First Defendant
(First Respondent)

Second Defendant
(Second Respondent)

Third Defendant
(Third Respondent)

BRISBANE

DATE 03/09/2009

JUDGMENT

FRASER JA:  The first order would be that the appeal is allowed. 

The second order would be that the orders made on the 20th of March 2009 in the trial division are set aside.

The third order would be grant the appellant leave to amend the amended claim filed on the 26th of March 2009 in a form which reinstates the claim which was filed on the 31st of October 2007.
The next order would be grant the appellant leave to amend the amended statement of claim within 14 days of today, then grant the defendant leave to file and deliver their defence to that amended statement of claim within 14 days of delivery of that amended statement of claim.  Then grant the appellant leave to deliver a reply within 14 days of the delivery of that defence.

And then order that the appellant is at liberty, if so advised, to include in that amended claim and further amended statement of claim a claim for personal injuries.

FRASER JA:  Well those are the orders of the Court so far.

FRASER JA:  The only question remaining in this appeal is whether or not the appellant should be ordered to pay the respondents' costs.

The result of the appeal has been entirely favourable to the appellant in that the Court has made the orders which would flow from success in the appeal, but that has really come about because in the course of the hearing it appeared that the Crown would no longer oppose the appellant from bringing a personal injuries claim.

The appellant had at first instance insisted that he had abandoned the personal injuries claim but had failed to give effect to that insistence by signing an appropriate document for the purpose. 

The result, I think, is a mixed one.  In my opinion a fair order for costs would be that they be the defendants/respondents costs in the proceedings in the trial division.  The intent of the order would be that if the respondents succeeded at the trial, but only in that event, they would get the costs.  I would make that order.

CHESTERMAN JA:  I agree.
WHITE J:  I agree.

FRASER JA:  So that order and the other orders I read out before are the orders of the Court.