Edwards & Anor v. Caldwell - [2007] QSC 94

[2007] QSC 094

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

DOUGLAS J

No 2650 of 2003

GRAHAM LESLIE EDWARDS and NOEL ARTHUR NAUMANN	Plaintiffs
and
GRAHAM PERCIVAL ANDREW CALDWELL and BRANLEY REGINALD McLENNAN	Defendants

BRISBANE

..DATE 21/03/2007

JUDGMENT

HIS HONOUR: This is an application for leave to appeal in respect of the costs order made by me in this matter on
1st March 2007. The costs order was made after a hearing of a day and the consideration of a significant amount of affidavit evidence.

I drew certain inferences against the plaintiffs who sought to propound a will allegedly made in 1999, withdrew their application to propound that will but sought a different order in respect of the costs of the application than the one I made.

The order that I made was that they should pay the costs of and incidental to the application and the action personally on an indemnity basis and not from the estate of the deceased. They will, of course, be liable for their own costs of their own legal representation.

It seems that the amount involved from their point of view will be significant although there was no direct evidence before me from which I could conclude any precise figure but it appears likely to be in excess of $200,000 in respect of their own costs plus the costs they have been ordered to pay.

The authorities dealing with section 253 of the Supreme Court Act 1995 make it clear that leave to appeal against an order as to costs is not given as a matter of course. Keane JA said in Morrison v. Hudson [2006] QCA 170 at para [24]:

"Whether leave to appeal should be granted will usually depend on the primary Judge's view as to the balance of competing arguments, whether those arguments relate to matters of legal principle or disputed questions of fact, the importance and difficulty of such arguments, and, on occasion, the amount of money involved."

The issue sought to be made the basis for a favourable exercise of my discretion by Mr Ambrose, who appeared for the plaintiffs, was that a number of inferences sought to be drawn were not identified properly or at all prior to the hearing and not made the subject of cross-examination. Those inferences were ones unfavourable to his client. In the judgment I had not drawn an inference against his clients that might have been available because Mr Edwards, in particular, had not been cross-examined. See para [32] of my reasons.

I sought to rely, however, upon other uncontradicted evidence and some inferences in respect of information available to doctors who had provided reports about the deceased's capacity to the plaintiffs and their solicitors.

Mr Ambrose submits that none of the following inferences that I was invited to draw were identified properly or at all prior to the hearing;

(a)that Mr Edwards was a party to or at least knew of the alleged misconduct of Mrs Binney;

(b)that Mrs Binney told Mr Edwards…

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.

Continue reading Edwards & Anor v. Caldwell

Details

AGLC: Edwards v Caldwell [2007] QSC 94
Case: [2007] QSC 94
Decision Date: 21 March 2007

CaseChat Overview and Summary

In the case of Edwards & Anor v. Caldwell, the plaintiffs sought leave to appeal against the costs order made by the Supreme Court of Queensland. The plaintiffs were involved in a legal dispute over the probate of a will, which they eventually withdrew. The primary judge ordered that the plaintiffs should pay the costs of the application on an indemnity basis, a decision that could potentially result in the plaintiffs paying over $200,000 in legal fees. The plaintiffs argued that the judge had drawn certain inferences against them without proper notice, particularly regarding the lack of cross-examination on these points. They claimed that the failure to properly identify these inferences before the hearing prejudiced their ability to respond effectively. The court considered whether the issues raised were significant enough to warrant an appeal, particularly in relation to the proper conduct of litigation and the rule in Browne v. Dunn.

The legal issues at the heart of the appeal related to the appropriate procedure for drawing inferences against parties in litigation and whether the plaintiffs were given sufficient notice of the inferences the judge intended to rely upon. The plaintiffs' counsel argued that the judge should not have drawn inferences from evidence without proper cross-examination and that the failure to do so was a significant procedural error. The court examined whether the arguments presented by the plaintiffs regarding the lack of proper notice and cross-examination were of sufficient importance to merit an appeal, especially considering the amount of money at stake and the broader implications for the conduct of litigation.

In granting the leave to appeal, the court noted that the issues raised were of general importance in ensuring the proper conduct of litigation. The court found that the plaintiffs had not been adequately notified of the inferences that would be drawn against them, which could potentially affect the fairness of the proceedings. The judge acknowledged that while the evidence might have been strong against the plaintiffs, the procedural concerns warranted an appeal. The decision to grant leave to appeal was based on the significant procedural issues raised and the potential impact on the plaintiffs' rights to a fair hearing.

The final order of the court was to grant leave to appeal in respect of the costs order, reserving the costs of the application to the Court of Appeal. This decision allows the plaintiffs to challenge the costs order on the grounds that they were not properly notified of the inferences that would be drawn against them, thereby ensuring a fairer process for addressing the significant financial implications of the case.

Orders