Farrar v Julian-Armitage - [2015] QCA 289

SUPREME COURT OF QUEENSLAND

CITATION:

Farrar v Julian-Armitage & Anor [2015] QCA 289

PARTIES:

VIKI MAREE FARRAR (FORMERLY SWEENEY)
(applicant)
v
ANGELA JULIAN-ARMITAGE
(first respondent)
GREGG LAWYERS PTY LTD
ACN 137 730 842
(second respondent)

FILE NO/S:

Appeal No 9554 of 2014
Appeal No 9555 of 2014
DC No 319 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Southport – [2014] QDC 194

DELIVERED ON:

18 December 2015

DELIVERED AT:

Brisbane

HEARING DATE:

20 October 2015

JUDGES:

Margaret McMurdo P and Morrison JA and Henry J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Application for leave to appeal dismissed.

2.   The applicant pay the respondents’ costs of and incidental to the application on the standard basis in an amount to be fixed by the court unless agreed between the parties by 29 January 2016.

3.   Failing such agreement:

(a)   by 5 February 2016 the respondents file and serve written submissions limited to five pages, verified by accompanying affidavit, as to the amount at which costs should be fixed;

(b)   by 12 February 2016 the applicant file and serve written submissions limited to five pages, verified if relevant by accompanying affidavit, as to the amount at which costs should be fixed;

(c)    by 19 February 2016 the respondents file and serve any written submissions limited to two pages, in reply.

CATCHWORDS:

PROCEDURE – COSTS – APPEALS AS TO COSTS – DISCRETION – where the applicant successfully sought an assessment of legal costs for services invoiced by each respondent in the District Court pursuant to s 335 Legal Profession Act 2007 (Qld) – where the respondents appealed the decision of the costs assessor in the District Court pursuant to r 742 Uniform Civil Procedure Rules 1999 (Qld) – where the review judge set aside the decision of the costs assessor in each case – where the applicant seeks leave to appeal the decision of the review judge in the District Court pursuant to s 118(3) District Court of Queensland Act 1967 (Qld) – whether leave to appeal should be granted to correct a substantial injustice to the applicant – whether there is a reasonable argument that there is an error to be corrected – whether the grounds of appeal advanced in the application warrant interference with the review judge’s decision

2007 Barristers’ Rule, r 77, r 78
District Court of Queensland Act 1967 (Qld), s 118(3)
Legal Profession Act 2007 (Qld), s 308, s 309, s 310, s 315, s 335, s 340, s 341, s 342
Uniform Civil Procedure Rules 1999 (Qld), r 742

ACI Operations Pty Ltd v Bawden [2002] QCA 286, followed
Cassegrain v CTK Engineering Pty Ltd [2008] NSWSC 457, cited
Frumar v Owners of Strata Plan 36957 (2006) 67 NSWLR 321; [2006] NSWCA 278, cited
House v The King (1936) 55 CLR 499; [1936] HCA 40, cited

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.

Keep reading for free

Create a free CaseChat account to read Farrar v Julian-Armitage and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] QCA 289
Decision Date: 18 December 2015

CaseChat Overview and Summary

Farrar was the successful party in a proceeding in the District Court, and sought to recover costs from Julian-Armitage. The District Court appointed a costs assessor to determine the amount. The assessor determined the amount of costs to be awarded and both parties appealed to the review judge. The review judge set aside the decision of the costs assessor. Farrar sought leave to appeal the review judge's decision. The court was required to determine whether there was a substantial injustice to Farrar, and whether there was a reasonable argument that there was an error to be corrected. The court was also required to determine whether the grounds of appeal advanced in the application warranted interference with the review judge’s decision.

The court found that the review judge had correctly determined the amount of costs to be awarded. The court found that there was no substantial injustice to Farrar. The court found that there was no reasonable argument that there was an error to be corrected. The court also found that the grounds of appeal advanced in the application did not warrant interference with the review judge’s decision.

The application for leave to appeal was dismissed. The applicant was ordered to pay the respondents’ costs of and incidental to the application on the standard basis in an amount to be fixed by the court unless agreed between the parties by 29 January 2016. Failing such agreement, the respondents were to file and serve written submissions limited to five pages, verified by accompanying affidavit, as to the amount at which costs should be fixed by 5 February 2016. The applicant was to file and serve written submissions limited to five pages, verified if relevant by accompanying affidavit, as to the amount at which costs should be fixed by 12 February 2016. The respondents were to file and serve any written submissions limited to two pages, in reply, by 19 February 2016.

Orders

Orders of the court

1. Application for leave to appeal dismissed.

2. The applicant pay the respondents’ costs of and incidental to the application on the standard basis in an amount to be fixed by the court unless agreed between the parties by 29 January 2016.

3. Failing such agreement:

(a) by 5 February 2016 the respondents file and serve written submissions limited to five pages, verified by accompanying affidavit, as to the amount at which costs should be fixed;

(b) by 12 February 2016 the applicant file and serve written submissions limited to five pages, verified if relevant by accompanying affidavit, as to the amount at which costs should be fixed;

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Farrar v Julian-Armitage & Anor [2015] QCA 289
PARTIES:	VIKI MAREE FARRAR (FORMERLY SWEENEY) (applicant) v ANGELA JULIAN-ARMITAGE (first respondent) GREGG LAWYERS PTY LTD ACN 137 730 842 (second respondent)
FILE NO/S:	Appeal No 9554 of 2014 Appeal No 9555 of 2014 DC No 319 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Civil)
ORIGINATING COURT:	District Court at Southport – [2014] QDC 194
DELIVERED ON:	18 December 2015
DELIVERED AT:	Brisbane
HEARING DATE:	20 October 2015
JUDGES:	Margaret McMurdo P and Morrison JA and Henry J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for leave to appeal dismissed. 2. The applicant pay the respondents’ costs of and incidental to the application on the standard basis in an amount to be fixed by the court unless agreed between the parties by 29 January 2016. 3. Failing such agreement: (a) by 5 February 2016 the respondents file and serve written submissions limited to five pages, verified by accompanying affidavit, as to the amount at which costs should be fixed; (b) by 12 February 2016 the applicant file and serve written submissions limited to five pages, verified if relevant by accompanying affidavit, as to the amount at which costs should be fixed; (c) by 19 February 2016 the respondents file and serve any written submissions limited to two pages, in reply.
CATCHWORDS:	PROCEDURE – COSTS – APPEALS AS TO COSTS – DISCRETION – where the applicant successfully sought an assessment of legal costs for services invoiced by each respondent in the District Court pursuant to s 335 Legal Profession Act 2007 (Qld) – where the respondents appealed the decision of the costs assessor in the District Court pursuant to r 742 Uniform Civil Procedure Rules 1999 (Qld) – where the review judge set aside the decision of the costs assessor in each case – where the applicant seeks leave to appeal the decision of the review judge in the District Court pursuant to s 118(3) District Court of Queensland Act 1967 (Qld) – whether leave to appeal should be granted to correct a substantial injustice to the applicant – whether there is a reasonable argument that there is an error to be corrected – whether the grounds of appeal advanced in the application warrant interference with the review judge’s decision 2007 Barristers’ Rule, r 77, r 78 District Court of Queensland Act 1967 (Qld), s 118(3) Legal Profession Act 2007 (Qld), s 308, s 309, s 310, s 315, s 335, s 340, s 341, s 342 Uniform Civil Procedure Rules 1999 (Qld), r 742 ACI Operations Pty Ltd v Bawden [2002] QCA 286, followed Cassegrain v CTK Engineering Pty Ltd [2008] NSWSC 457, cited Frumar v Owners of Strata Plan 36957 (2006) 67 NSWLR 321; [2006] NSWCA 278, cited House v The King (1936) 55 CLR 499; [1936] HCA 40, cited