Daly v D a Manufacturing Co P/L - [2003] QCA 331

SUPREME COURT OF QUEENSLAND

CITATION:

Daly v D A Manufacturing Co P/L & Anor [2003] QCA 331

PARTIES:

STEPHEN DENNIS DALY
(plaintiff/respondent)
v
D A MANUFACTURING CO PTY LTD
ACN 010 219 717
(first defendant/appellant)
LETZBUILD PTY LTD ACN 070 914 395
(second defendant)

FILE NO/S:

Appeal No 10104 of 2002
SC No 7502 of 1999

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal – Further Order

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

Judgment delivered 4 July 2003
Further Order delivered 1 August 2003

DELIVERED AT:

Brisbane

HEARING DATE:

11 April 2003

JUDGES:

Williams and Jerrard JJA and Fryberg J
Judgment of the Court

FURTHER ORDER:

Order that the respondent pay the appellant’s costs of the appeal to be assessed, but limited to the appellant’s costs of and incidental to the appeal on quantum

CATCHWORDS:

PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – OTHER CASES – FAILURE IN A PORTION OF A CASE – where appeal as to liability and quantum – where learned trial judge’s conclusion on liability upheld on appeal – where appeal as to quantum allowed – whether court should exercise its discretion to order the respondent to pay all of the appellant’s costs of the appeal

Deepcliffe P/L & Anor v The Council of the City of Gold Coast& Anor [2001] QCA 396; Appeal No 10673 of 2000, 25 September 2001, cited
Tamwoy v Solomon [1996] 2 Qd R 93; [1995] QCA 447; Appeal No 76 of 1995, 10 October 1995, cited
Tector v FAI General Insurance Co Ltd [2001] 2 Qd R 463; [2000] QCA 426; Appeal No 7391 of 1999, 8 December 2000, cited

COUNSEL:

G W Diehm for the appellant
S C Williams QC, with P A Howard, for the respondent

SOLICITORS:

Michael Stewart for the appellant
Primrose Couper Cronin Rudkin for the respondent

THE COURT: On 4 July 2003 the court allowed an appeal by the defendant and substituted an award of damages to the plaintiff in the sum of $240,957.00 for the sum of $370,392.84 originally assessed by the trial judge on the basis of his finding that the defendant was wholly liable. The court then gave the parties leave to make written submissions as to costs; those submissions have now been received.

Prior to trial the plaintiff, the present respondent, made a formal offer to settle complying with the UCPR for the sum of $170,000.00 plus costs; that was not accepted by the defendant. Because the assessment by the trial judge exceeded that offer the plaintiff obtained an order for costs of the trial on an indemnity basis. That costs order is not affected by the order made in this court.

Prior to the hearing of the appeal the defendant (present appellant) made an offer to settle in the sum of $190,000.00. That offer was not accepted.

On the hearing of the appeal the respondent-plaintiff sought to uphold the judgment in full. The appellant, in addition to challenging the assessment of quantum,…

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.

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Details

Case: [2003] QCA 331
Decision Date: 4 July 2003

CaseChat Overview and Summary

The case of Daly v D a Manufacturing Co P/L involved the plaintiff, Daly, who sought damages from the defendant, D a Manufacturing Co P/L, for injuries sustained in a workplace accident. The dispute arose from the initial proceedings in the Supreme Court of Queensland, where the trial judge ruled in favour of the plaintiff on the issue of liability but found in favour of the defendant on the issue of quantum. Both parties appealed the decision, with Daly appealing the quantum and the defendant appealing the liability. The Court of Appeal upheld the trial judge’s conclusion on liability but allowed the defendant’s appeal on quantum.

The primary legal issue before the court was whether, in light of the defendant’s partial success on appeal, the court should exercise its discretion to order the defendant to pay all of the plaintiff’s costs of the appeal. This issue hinged on the general principle that the costs of an appeal should follow the event, meaning the unsuccessful party should pay the successful party’s costs. However, there are circumstances where the court may depart from this general rule, particularly where there has been a failure in a portion of the case or where the appeal has been partly successful.

The court considered the principles and precedents governing costs in appeals and concluded that the defendant should not be ordered to pay all of the plaintiff’s costs of the appeal. The court held that while the plaintiff was successful in maintaining the liability ruling, the defendant had a successful appeal on the quantum, which constituted a significant part of the appeal. Additionally, the court found that the defendant had valid reasons for pursuing the appeal on liability, which contributed to the overall fairness of the outcome. The court exercised its discretion and ordered the parties to bear their own costs of the appeal.

Orders