Hawley v Palm Springs Natural Spring Water Co Pty Ltd

[1999] QCA 137

99.137

COURT OF APPEAL

McMURDO P
McPHERSON JA
ATKINSON J

Appeal No 3234 of 1999

ANTHONY RONALD HAWLEY                 Appellant (Plaintiff)

and

PALM SPRINGS NATURAL SPRING
WATER CO PTY LTD  Respondent (Defendant)

BRISBANE

..DATE 19/04/99

JUDGMENT

McPHERSON JA:  The plaintiff was employed by the defendant as a delivery driver in its business of selling bottles of mineral water.  The bottles weighed some 20 kilograms each and were loaded on racks four high on the tray of the truck that was driven by the plaintiff in the course of his employment.   He was injured when lifting a bottle from the truck.  It slipped and, in attempting to prevent its fall, the plaintiff injured his shoulder.

Despite the plaintiff's invitation to admit liability the defendant denied it.  The plaintiff's solicitors engaged an expert Safety Search Pty Ltd, which is a company practising as an occupational and safety consultant.  Dr Ian Coyle of that company provided a report about the deficiencies in the delivery methods adopted by the plaintiff and the means by which the procedure might have been differently arranged.  In addition, the plaintiff's solicitors obtained a report from accountants KPMG concerning the quantum of the plaintiff's economic loss, with particular reference to his present and future income based on his earnings and earning capacity. 

The action was settled before trial on terms that the defendant paid the plaintiff's costs to be taxed.  In taxing those costs the Taxing Officer disallowed items relating both of the two reports.  On party and party taxation he decided that neither of the reports, or the costs associated with them, was reasonable or necessary for the proper conduct of the plaintiff's action. 

In his opinion the reports could not be considered as involving matters requiring expert evidence.  On appeal to the District Court the decision of the Taxing Officer was affirmed by a District Court Judge. 

This is an application under section 118 of the District Court Act for leave to appeal against that decision. It is said to raise a question about the interpretation of rule 149A(3)(f)(vi) of the District Court Rules, which is said to be a source of some divergence of opinion among District Court Judges.

However, before that question is reached, the fact remains, as I have already said, that the Taxing Master did not regard the report of Dr Coyle as reasonable or necessary for the conduct of the plaintiff's action.  In that connection we were informed on the hearing of this application that it was no longer intended to pursue an appeal in respect of the cost of the accountant's report, but only that of Dr Coyle.

Of Dr Coyle's report the Taxing Master said this:

"It is clear from the words of Dr Coyle himself that the matter initiating the cause of this action was not one of a complex nature and certainly did not require someone with any peculiar knowledge or skill given the amount of information regarding these particular matters which is readily available."

Until that conclusion is disturbed, it will not be relevant to consider the proper construction of rule 149A, or of any of the other provisions of the District Court Rules that are said to be involved either directly or indirectly in the question which has vexed the minds of the Judges in the District Court.

The attitude of an appellate court to decisions on a taxation of costs is well settled.  It is exemplified in the well-known decision of Sir Frank Kitto in Australian Coal and Shale Employees Federation v. The Commonwealth (1953) 94 CLR 621, particularly 628-629. Stated broadly, it is that a decision given in the taxation of costs will not be upset on appeal unless some error of principle is demonstrated in the decision or the reasons leading to it.

That is not the case here.  The Taxing Master's decision that the disputed item was reasonable and necessary for the proper conduct of the action was one that it was within his discretion to arrive at.  It is said that the learned Judge, before whom the appeal by way of review of this taxation came, took a different view of that matter, and that he concluded that the Taxing Officer was wrong in the conclusion he had reached.

What is, however, absent is any indication in the reasons of the learned Judge that, in differing from the Taxing Master, he had done so on the footing that the Taxing Master had applied a wrong principle or otherwise that his decision on this point was manifestly wrong.

That being so, the result is that the case stands in this fashion.  The Taxing Officer disallowed the disputed item and is not demonstrated to have done so on the basis of any wrong principle, with the result that it cannot be said that his decision was manifestly wrong.  If the matter were to come before this Court on appeal, the Court would be concerned ultimately, not with what the learned Judge decided, but with what the Taxing Officer decided, whose decision was affirmed by the learned Judge.

The case therefore is one in which it is now shown that the disallowance, or the basis for disallowance, of the disputed item is erroneous, or such as would inevitably lead this Court to deal with the question which it is said is agitating the profession and the Judges in the District Court. 

Leave to appeal is ordinarily not granted if the decision sought to be appealed against rests on a factual or discretionary basis which is not demonstrated to be wrong, and which requires no analysis of legal principle and which, if left to stand, is not self-evidently a source of serious injustice to the particular applicant before the Court.

Here the total amount involved in the item in dispute is said to be $2,318.45.  That is not so large an amount as to attract the intervention of this Court on grounds of injustice.  For reasons I have given, the matter is, to my mind, not an appropriate one in which to test the principle said to be involved in the decisions referred to in the District Court. 

All matters considered, the circumstances disclosed in the application before us are not, in my view, such as to justify the granting of leave to appeal.  I would therefore dismiss the application.

THE PRESIDENT:  I agree that this is not an appropriate case in which leave to appeal should be given for the reasons given by Mr Justice McPherson. 

ATKINSON J:  I agree with the order proposed by the Honourable Mr Justice McPherson and with his reasons.

THE PRESIDENT:  The order is the application for leave to appeal is refused.

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