Greenall v Amaca Pty Ltd [No 2] - [2024] QCA 169

SUPREME COURT OF QUEENSLAND

CITATION:

Greenall v Amaca Pty Ltd [No 2] [2024] QCA 169

PARTIES:

PHILIP NIGEL GREENALL as the Legal Personal Representative of the Estate of the Late WALTER GREENALL
(first appellant)
AUDREY GREENALL a person under a legal disability, by her Litigation Guardian PHILIP NIGEL GREENALL
(second appellant)
v
AMACA PTY LTD (formerly JAMES HARDIE & COY PTY LTD)
(first respondent)
WORKCOVER QUEENSLAND
(second respondent)

FILE NO/S:

Appeal No 12581 of 2023
SC No 14063 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal – Further Order

ORIGINATING COURT:

Supreme Court at Brisbane – [2023] QSC 137 (Crowley J)

DELIVERED ON:

10 September 2024

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Morrison JA and Fraser AJA and Kelly J

ORDER:

The appellants pay the first respondent’s costs of and incidental to the appeal.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – where the appellants were unsuccessful on appeal – where the appellants and first respondent provided further submissions on the issue of costs – where the second respondent does not seek any order for costs and no order for costs is sought against it – where the first respondent submits the appellants should pay costs – where the appellants submit the first respondent should pay their costs of the appeal or, alternatively, that there should be no order as to costs – whether there are special or exceptional circumstances which warrant depriving a successful party of its costs

Uniform Civil Procedure Rules (Qld), r 766(1)(d)

CSR Ltd v Eddy (2005) 226 CLR 1; [2005] HCA 64, distinguished
Greenall v Amaca Pty Ltd[2024] QCA 132, cited
Karanfilov v Inghams Enterprises Pty Ltd [2001] 2 Qd R 273; [2000] QCA 348, cited
Nine Network Australia Pty Ltd v Wagner[2021] QCA 84, applied

COUNSEL:

J M Hewson for the appellants
B F Charrington KC, with A S Kitchin, for the first respondent
No appearance for the second respondent

SOLICITORS:

Segelov Taylor Lawyers for the appellants
Holman Webb lawyers for the first respondent
No appearance for the second respondent

THE COURT: The Court dismissed the first and second plaintiffs’ appeal against the primary judge’s orders striking out so much of their amended statement of claim as pleaded a wrongful death claim by the first plaintiff for the benefit of the second plaintiff against the first defendant and answering “no” to the question whether the first plaintiff could maintain the claims pleaded in that part of the amended statement of claim.[1] The appellants and the first respondent have now exchanged submissions about costs pursuant to leave granted to the parties for that purpose. No party makes a submission about the costs ordered in the Trial Division. The first respondent and the second respondent were separately represented in the appeal, but the second respondent does not seek any order about costs and no order for costs is sought against it. The first respondent seeks an order that…

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.

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Details

Case: [2024] QCA 169
Decision Date: 10 September 2024

CaseChat Overview and Summary

The appeal in Greenall v Amaca Pty Ltd [No 2] involved the appellants, who were unsuccessful in their appeal, and the respondents, with the second respondent choosing not to seek any order for costs and no order being sought against it. The first respondent submitted that the appellants should bear the costs of the appeal, while the appellants argued that the first respondent should pay their costs of the appeal or, alternatively, that there should be no order as to costs. The central issue before the court was whether special or exceptional circumstances existed that would warrant depriving the successful party of its costs.

The court examined the principle that ordinarily, the unsuccessful party in litigation bears the costs of the proceedings, unless there are special or exceptional circumstances. The appellants did not provide any compelling argument that would justify departing from this principle. The court found no exceptional circumstances that would warrant depriving the first respondent of its costs, and thus upheld the first respondent's right to recover its costs of the appeal from the appellants.

Consequently, the court ruled that the appellants should pay the first respondent's costs of and incidental to the appeal. This decision reinforces the principle that unless special or exceptional circumstances are present, the unsuccessful party in an appeal bears the costs of the appeal.

The final order of the court was that the appellants pay the first respondent's costs of and incidental to the appeal. This outcome highlights the importance of demonstrating exceptional circumstances to avoid bearing the costs of unsuccessful litigation.

Orders

Orders of the court

The appellants pay the first respondent’s costs of and incidental to the appeal.

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:	Greenall v Amaca Pty Ltd [No 2] [2024] QCA 169
PARTIES:	PHILIP NIGEL GREENALL as the Legal Personal Representative of the Estate of the Late WALTER GREENALL (first appellant) AUDREY GREENALL a person under a legal disability, by her Litigation Guardian PHILIP NIGEL GREENALL (second appellant) v AMACA PTY LTD (formerly JAMES HARDIE & COY PTY LTD) (first respondent) WORKCOVER QUEENSLAND (second respondent)
FILE NO/S:	Appeal No 12581 of 2023 SC No 14063 of 2021
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal – Further Order
ORIGINATING COURT:	Supreme Court at Brisbane – [2023] QSC 137 (Crowley J)
DELIVERED ON:	10 September 2024
DELIVERED AT:	Brisbane
HEARING DATE:	Heard on the papers
JUDGES:	Morrison JA and Fraser AJA and Kelly J
ORDER:	The appellants pay the first respondent’s costs of and incidental to the appeal.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – where the appellants were unsuccessful on appeal – where the appellants and first respondent provided further submissions on the issue of costs – where the second respondent does not seek any order for costs and no order for costs is sought against it – where the first respondent submits the appellants should pay costs – where the appellants submit the first respondent should pay their costs of the appeal or, alternatively, that there should be no order as to costs – whether there are special or exceptional circumstances which warrant depriving a successful party of its costs Uniform Civil Procedure Rules (Qld), r 766(1)(d) CSR Ltd v Eddy (2005) 226 CLR 1; [2005] HCA 64, distinguished Greenall v Amaca Pty Ltd[2024] QCA 132, cited Karanfilov v Inghams Enterprises Pty Ltd [2001] 2 Qd R 273; [2000] QCA 348, cited Nine Network Australia Pty Ltd v Wagner[2021] QCA 84, applied
COUNSEL:	J M Hewson for the appellants B F Charrington KC, with A S Kitchin, for the first respondent No appearance for the second respondent
SOLICITORS:	Segelov Taylor Lawyers for the appellants Holman Webb lawyers for the first respondent No appearance for the second respondent