Hemphill v Meaghan (No 2)

[1989] TASSC 86

Serial No. B8/1989
List “B”

COURT:                 SUPREME COURT OF TASMANIA

CITATION:            Hemphill v Meaghan (No 2) [1989] TASSC 86; B8/1989

PARTIES:  HEMPHILL
  v
  MEAGHAN

FILE NO/S:  LCA 117/1988
DELIVERED ON:  13 March 1989
JUDGMENT OF:  Crawford J

Judgment Number:  B8/1989
Number of paragraphs:  7

Serial No B8/1989
File No LCA 117/1988

HEMPHILL v MEAGHAN (No 2)

REASONS FOR JUDGMENT  CRAWFORD J

13 March 1989

1. Application has been made for an indemnity certificate pursuant to s.8(1) of the Appeal Costs Fund Act 1968, by an unsuccessful respondent to an appeal from the Court of Requests. The appeal was brought by the plaintiff from a finding that he was contributorily negligent, to the extent of 25 per cent, in the circumstances of a claim for damages arising out of a motor vehicle collision. The primary findings of fact were not attacked, it being the case of the appellant that no contributory negligence should have been found or that the apportionment should have been less than 25 per cent against him.

1. On 3 March I gave judgment for the appellant, set aside the order appealed from, and substituted a judgment consistent with my finding that the appellant was 12½ per cent contributorily negligent, that is to say I gave judgment for the appellant on the claim to the extent of 87½ per cent of his damages, and judgment for the respondent on the counterclaim to the extent of 12½ per cent of his damages. I ordered that the respondent pay the appellant's costs of the appeal.

1. The respondent applied for an indemnity certificate. His counsel argued that a question of law, or of mixed fact and law, had been involved. The only authority referred to was Barry v Shoobridge 81/1971, which was a case involving the exercise of a discretion and not in point.

1. In my reasons for judgment (Hemphill v Meaghan B4/1989) I considered the findings of fact, indeed all the evidence, and disagreed with the conclusion of the learned Commissioner only as to the extent of the appellant's contributory negligence. I emphasised (at p7) that the case would in no way be an authority on a matter of law. My decision conformed, in my opinion, with the views expressed by the High Court in Warren v Coombes (1979) 142 CLR 531, that an appellate court should come to its own conclusion on facts found to exist by the court below and not in question on the appeal.

1. For there to be an entitlement to an indemnity certificate, s8 requires that an appeal must succeed "on a question of law". In Barry v Shoobridge (supra) Burbury CJ said at p4 that if the error is one of fact, it cannot properly be characterized as one in point of law. I did not find that the learned Commissioner made an error in point of law. I did not find that the inference of 25 per cent contributory negligence could not reasonably be drawn by a court (as to this see Instrumatic Limited v Supabrase Limited [1969] 1 WLR 519 per Lord Denning MR at p521). I simply substituted my own conclusion on the facts.

1. A finding of negligence, contributory negligence or no negligence is a finding of fact; Edwards v Noble (1971) 125 CLR 296 per Barwick CJ at pp300 and 303; Jones v Capaldi (1956) 98 CLR 615 at pp616, 617 and 618; Piro v W. Foster & Co. Ltd. (1943–1944) 68 CLR 313 per Latham CJ at p322 and Williams J at p342; Madalaine Textile Manufacturing Co Pty Ltd v Merrylands Bus Co Pty Ltd [1969] 2 NSWLR 573 and Commissioner of Taxation v Miller (1946) 73 CLR 93 per Rich J at p101.

1. It follows that in the circumstances of this appeal, I have no power to grant an indemnity certificate. The application is accordingly refused.