Flori v Winter - [2020] QCA 115

SUPREME COURT OF QUEENSLAND

CITATION:

Flori v Winter & Ors [2020] QCA 115

PARTIES:

RICKY ANTHONY FLORI
(appellant)
v
DAVID BRETT WINTER
(first respondent)
PETER DOYLE
(second respondent)
DIRK PETERSEN
(third respondent)
STATE OF QUEENSLAND
(fourth respondent)

FILE NO/S:

Appeal No 5689 of 2019
SC No 4178 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal – Further Orders

ORIGINATING COURT:

Supreme Court at Brisbane – [2019] QSC 106 (Bowskill J)

DELIVERED ON:

29 May 2020

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Fraser JA and Buss AJA and Henry J

ORDERS:

1. The respondents pay the appellant’s costs of and incidental to the appeal.

2. There be no order as to the costs of the question posed for separate determination heard before Bowskill J on 28 February 2019.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL MATTERS – POWER TO AWARD GENERALLY – GENERALLY – where a separate question for determination was set down in the proceeding for hearing in the Trial Division – where the question was set down for determination with the appellant’s consent – where the primary judge answered that question adversely to the appellant and dismissed his proceeding – where, on appeal, the appellant succeeded to the extent that the Court found the question was inappropriate as it was premised upon an incorrect construction of statutory provisions – where the appellant did not raise the argument upon which he succeeded on appeal at the hearing before the primary judge – whether the respondents should be required to pay the appellant’s costs of the hearing before the primary judge

COUNSEL:

G J Rebetzke for the appellant
K A Mellifont QC, with S A McLeod, for the respondents

SOLICITORS:

Roberts & Kane Solicitors for the appellant
Crown Law for the respondents

FRASER JA: Pursuant to leave granted when the appeal in this matter was allowed[1] the parties have exchanged submissions about the appropriate costs orders. The appellant contends that the costs of the appeal and of the hearing before Bowskill J should follow the event of the appeal. The respondents accept that they should be ordered to pay the appellant’s costs of the appeal but they argue that there should be no order as to the costs of the hearing before Bowskill J.
[1][2019] QCA 281.
On 13 May 2019 Bowskill J answered adversely to the appellant a question which on 6 December 2018 Ryan J had set down for separate determination in the appellant’s proceeding against the respondents. As a result of that answer Bowskill J ordered that the appellant’s proceeding be dismissed. On appeal the court held that the question was inappropriate to answer because it was premised upon an incorrect construction of provisions of the Whistleblowers Protection Act 1994 (Qld). The unsuccessful respondents argue that they should not be required to pay the appellant’s costs of the hearing before Bowskill J because the question was set down for separate determination with the…

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 Flori v Winter

Details

AGLC: Flori v Winter [2020] QCA 115
Case: [2020] QCA 115
Decision Date: 29 May 2020

CaseChat Overview and Summary

Flori was the appellant and Winter was the respondent in this case heard by the Supreme Court of New South Wales. The dispute arose out of a proceeding where a separate question was set down for determination in the Trial Division. This question was set down with the appellant's consent. The primary judge answered the question adversely to the appellant and dismissed his proceeding. On appeal, the appellant succeeded to the extent that the court found the question was inappropriate as it was premised upon an incorrect construction of statutory provisions. The appellant did not raise the argument upon which he succeeded on appeal at the hearing before the primary judge. The appellant argued that the respondents should be required to pay his costs of the hearing before the primary judge.

The legal issue before the court was whether the respondents should be required to pay the appellant’s costs of the hearing before the primary judge, given that the appellant did not raise the argument upon which he succeeded on appeal at that hearing. The court had to consider the appropriateness of requiring the respondents to pay the appellant's costs when the argument that led to the appellant's success on appeal was not presented to the primary judge.

The court found that the respondents should not be required to pay the appellant’s costs of the hearing before the primary judge. The court reasoned that the appellant did not raise the argument upon which he succeeded on appeal at the hearing before the primary judge. The court held that it was not appropriate to require the respondents to pay the costs of the hearing before the primary judge, given that the argument which led to the appellant's success on appeal was not presented to the primary judge. The court further noted that the primary judge had dismissed the appellant's proceeding based on the question that was set down for determination. The court concluded that it was not appropriate to require the respondents to pay the appellant's costs of the hearing before the primary judge.

The orders of the court were that the respondents pay the appellant’s costs of and incidental to the appeal, and there be no order as to the costs of the question posed for separate determination heard before Bowskill J on 28 February 2019.

Orders

Orders of the court

1. The respondents pay the appellant’s costs of and incidental to the appeal.

2. There be no order as to the costs of the question posed for separate determination heard before Bowskill J on 28 February 2019.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Flori v Winter & Ors [2020] QCA 115
PARTIES:	RICKY ANTHONY FLORI (appellant) v DAVID BRETT WINTER (first respondent) PETER DOYLE (second respondent) DIRK PETERSEN (third respondent) STATE OF QUEENSLAND (fourth respondent)
FILE NO/S:	Appeal No 5689 of 2019 SC No 4178 of 2017
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal – Further Orders
ORIGINATING COURT:	Supreme Court at Brisbane – [2019] QSC 106 (Bowskill J)
DELIVERED ON:	29 May 2020
DELIVERED AT:	Brisbane
HEARING DATE:	Heard on the papers
JUDGES:	Fraser JA and Buss AJA and Henry J
ORDERS:	1. The respondents pay the appellant’s costs of and incidental to the appeal. 2. There be no order as to the costs of the question posed for separate determination heard before Bowskill J on 28 February 2019.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL MATTERS – POWER TO AWARD GENERALLY – GENERALLY – where a separate question for determination was set down in the proceeding for hearing in the Trial Division – where the question was set down for determination with the appellant’s consent – where the primary judge answered that question adversely to the appellant and dismissed his proceeding – where, on appeal, the appellant succeeded to the extent that the Court found the question was inappropriate as it was premised upon an incorrect construction of statutory provisions – where the appellant did not raise the argument upon which he succeeded on appeal at the hearing before the primary judge – whether the respondents should be required to pay the appellant’s costs of the hearing before the primary judge
COUNSEL:	G J Rebetzke for the appellant K A Mellifont QC, with S A McLeod, for the respondents
SOLICITORS:	Roberts & Kane Solicitors for the appellant Crown Law for the respondents