Erglis v Buckley

[2004] QCA 277

SUPREME COURT OF QUEENSLAND

CITATION:	Erglis v Buckley & Ors [2004] QCA 277
PARTIES:	WENDY ERGLIS (plaintiff/appellant) v MELISSA BUCKLEY (first defendant/first respondent) RACHAEL CRAWLEY (second defendant/second respondent) LISA SHEARMAN (third defendant/third respondent) ALLISON LOVELL (fourth defendant/fourth respondent) JUDY CUMMINGS (fifth defendant/fifth respondent) REBECCA MANNING (sixth defendant/sixth respondent) JANINE GIBSON (seventh defendant/seventh respondent) KYLIE ASH (eighth defendant/eighth respondent) JACQUI BOE (ninth defendant/ninth respondent) RON MIDDLETON (tenth defendant/tenth respondent) MADONNA FUERY (eleventh defendant/eleventh respondent) STATE Of QUEENSLAND (twelfth defendant/twelfth respondent)
FILE NO/S:	Appeal No 747 of 2004 SC No 2867 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Appeal from interlocutory decision – further orders
ORIGINATING  COURT:	Supreme Court at Brisbane
DELIVERED ON:	Judgment delivered on 2 July 2004 Further orders delivered on 6 August 2004
DELIVERED AT:	Brisbane
HEARING DATE:	29 March 2004
JUDGES:	McPherson JA, Jerrard JA and Fryberg J Judgment of the Court

ORDERS:	1.	Paragraphs 1 and 2 of the order made on 15 March 2004 remain undisturbed
2.	Set aside paragraph 3 of the order made on 15 March 2004
3.
In lieu thereof, it is ordered that the defendants balance of the amended application dated 31 October 2003 to be assessed on the standard basis

CATCHWORDS:	PROCEDURE – COSTS
COUNSEL:	P J Favell and R J Anderson for the appellant R V Hanson QC and P A Freeburn SC for the respondents H B Fraser QC for the Speaker
SOLICITORS:	Drakopoulos Black for the appellant Crown Law for the respondents Office of the Clerk, Queensland Parliament for the Speaker

1. THE COURT: This appeal was from a judgment given by Philippides J striking out paragraphs 12(a) and 13(a) of the appellant’s further amended statement of claim. Judgment was pronounced on 2 July 2004. McPherson JA and Fryberg J allowed the appeal with costs on the standard basis against the respondent defendants. Jerrard JA gave a dissenting judgment.

2. McPherson JA, with whom Fryberg J agreed, ordered that paragraph 3 of the order made on 15 March 2004 by the learned judge below be set aside and reserved the costs under that paragraph for further consideration. The parties were given leave to make submissions with respect to those reserved costs. Those submissions have been received.

3. Paragraph 3 of the order made on 15 March 2004 by the learned judge provided that the costs of and incidental to the application determined by her Honour relating to the issue of striking out parts of the plaintiff appellant’s pleadings be paid by the plaintiff to be assessed on the standard basis. Her Honour awarded costs to the defendants, on the basis that the respondents had been largely successful on the strike out application.

4. As the appellant has been successful on appeal in the reinstatement of paragraphs 12(a) and 13(a) it is the case that the plaintiff appellant has had a measure of success on the application but has failed on some issues on which the strike-out application succeeded; and the respondent defendants ought pay one half of her costs of and incidental to the application.

5. The orders the Court makes are:

1.	Paragraphs 1 and 2 of the order made on 15 March 2004 remain undisturbed;
2.	Set aside paragraph 3 of the order made on 15 March 2004;
3.	In lieu thereof, it is ordered that the defendants pay half the plaintiff’s costs of and incidental to the balance of the amended application dated 31 October 2003 to be assessed on the standard basis.