Day v Humphrey

Case [2018] QCA 321

SUPREME COURT OF QUEENSLAND

CITATION:

Day v Humphrey & Ors [2018] QCA 321

PARTIES:

OLGA DAY
(appellant)
v
PROFESSOR JOHN HUMPHREY
(first respondent/not a party to the appeal)
ASSOCIATE PROFESSOR TINA COCKBURN
(second respondent/not a party to the appeal)
QUEENSLAND UNIVERSITY OF TECHNOLOGY
(third respondent/not a party to the appeal)
WESLEY LERCH
(fourth respondent)
DAVID BRAY
(fifth respondent)
QUEENSLAND COMPENSATION LAWYERS PTY LTD
ACN 135 360 119
(sixth respondent)

FILE NO/S:

Appeal No 12360 of 2017
SC No 5774 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal – Further Orders

ORIGINATING COURT:


Supreme Court at Brisbane – [2017] QSC 236 (Daubney J)

DELIVERED ON:

16 November 2018

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Morrison and Philippides JJA and Brown J

ORDERS:

1.   The appellant pay the respondents one third of their costs of and incidental to the appeal.

2.   The respondents pay the appellant’s costs of the appeal.

3.   The costs of the proceedings below are reserved, to be dealt with by the judge who hears the eventual trial or other determination of the proceedings.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS – COSTS – RELEVANT CONSIDERATIONS GENERALLY – where the appellant contends the fourth respondent should be ordered to personally pay her costs of the appeal– where the appeal concerned only two issues, one being an application for the learned primary judge to recuse himself and the other summary judgment – where the appellant was successful only in regards to the summary judgment issue – where orders for costs do not always follow the event where a summary judgment application is concerned – where the appellant failed on the other ground, and as such, could have costs ordered against her – where the appellant is self-represented – whether the parties should be ordered to pay a proportion of the costs

Uniform Civil Procedure Rules 1999 (Qld), r 684

Allianz Australia Insurance Ltd v Swainson[2011] QCA 179, followed
BHP Coal Pty Ltd v O & K Orenstein & Koppel AG (No 2)[2009] QSC 64, cited
Day v Lerch & Ors[2018] QCA 224, related
State of Queensland v Nixon & Ors[2002] QSC 296, cited

COUNSEL:

The appellant appeared on her own behalf
No appearance for the respondents

SOLICITORS:

The appellant appeared on her own behalf
Queensland Compensation Lawyers Pty Ltd for the respondents

  1. MORRISON JA:  On 18 September 2018 the Court delivered its primary reasons in respect of the appeals in CA No 12360 of 2017 and CA No 3799 of 2017, which were heard together.  These reasons now deal with the question of costs in CA No 12360 of 2017.

  2. There were two distinct issues on the appeal in CA No 12360 of 2017.  The first concerned an appeal from the refusal of the learned primary judge to recuse himself from further hearing the matter.  That appeal failed.

  3. The second concerned an appeal against the orders made by the learned primary judge, giving summary judgment against the appellant…

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Details
AGLC
Day v Humphrey [2018] QCA 321
Case
[2018] QCA 321
Decision Date

CaseChat Overview and Summary

In the case of Day v Humphrey, the appellant contested the fourth respondent’s obligation to cover her appeal costs. The appeal, primarily handled by the appellant who was self-represented, focused on two issues: a request for the primary judge to recuse himself and a summary judgment application. The appellant emerged victorious only in relation to the summary judgment issue. The court examined the circumstances surrounding the costs and the appellant's failure on the recusal application, considering whether the parties should share a portion of the costs.

The legal issues before the court included the general principles governing costs in civil proceedings, specifically in the context of an appeal where the appellant had partial success. The court was tasked with determining whether the appellant should be personally liable for the fourth respondent's costs and whether the costs should be proportionately shared among the parties. The court also had to consider the appellant's self-represented status and the unsuccessful nature of the recusal application.

The court reasoned that while the appellant was successful in one aspect of the appeal, the overall outcome did not warrant an order for the fourth respondent to bear the full costs of the appeal. Instead, the court concluded that it was appropriate for the parties to share the costs. Consequently, the court ordered the appellant to pay one-third of the respondents' costs and the respondents to cover the appellant's costs. The costs of the proceedings at the trial level were reserved for the judge who would oversee the eventual trial or determination.

The court's final orders were that the appellant would pay one-third of the respondents' costs of the appeal, the respondents would cover the appellant's costs of the appeal, and the costs of the proceedings at the trial level were to be determined by the judge handling the trial. This decision balanced the need for cost-sharing with the appellant's partial success in the appeal.

Orders

Orders of the court

1. The appellant pay the respondents one third of their costs of and incidental to the appeal.

2. The respondents pay the appellant’s costs of the appeal.

3. The costs of the proceedings below are reserved, to be dealt with by the judge who hears the eventual trial or other determination of the proceedings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The costs of the proceedings below should be reserved, to be dealt with by the judge who hears the eventual trial or other determination of the proceedings. That follows because of the issues identified in paragraph [10] above, and because this court is not in a position to make any assessment of the division of time and effort on the separate issues below.Conclusion I propose the following orders:1.The appellant pay the respondents one third of their costs of and incidental to the appeal.2.The respondents pay the appellant’s costs of the appeal.3.The costs of the proceedings below are reserved, to be dealt with by the judge who hears the eventual trial or other determination of the proceedings. PHILIPPIDES JA: I agree with the reasons of Morrison JA and with the orders proposed by his Honour. BROWN J: I agree with the reasons given by Morrison JA, and the orders proposed by his Honour.

Ratio Decidendi

Legal Principle Established

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