Hodgens v Hodgens - [2008] QCA 80

SUPREME COURT OF QUEENSLAND

CITATION:

Hodgens v Hodgens and Anor [2008] QCA 80

PARTIES:

ERROL VIVIAN THOMAS HODGENS
(applicant/appellant)
v
RONALD HENRY HODGENS
(first respondent)
YOLANDE LYVIA KREBS
(second respondent)

FILE NO/S:

Appeal No 11016 of 2006
Appeal No 11017 of 2006
SC No 860 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Miscellaneous Application – Civil
General Civil Appeal

ORIGINATING COURT:

Supreme Court at Townsville

DELIVERED ON:

4 April 2008

DELIVERED AT:

Brisbane

HEARING DATE:

5 April 2007

JUDGES:

Jerrard JA, Wilson and Lyons JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. That both appeals be dismissed
2. That the appellant pay the respondents’ costs, agreed or assessed on the standard basis, of and incidental to both appeals

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – PARTICULAR CASES – OTHER MATTERS – COSTS – where the trial judge had made an order refusing to grant leave to appeal against costs – whether the decision was within a proper exercise of the trial judge’s discretion

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – FUNCTIONS OF APPELLATE COURT – IN GENERAL – where the trial judge concluded that the appellant was heavily responsible for wasted costs – whether that conclusion was open to the trial judge on the facts

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – COURSE OF CONDUCT AT TRIAL – PARTICULAR CASES – CONDUCT ESTABLISHING AGREEMENT, CONSENT OR DISCLAIMER – where counsel at trial conveyed the consent of the appellant – where the trial judge acted on the consent – where the appellant alleged that counsel had exceeded his authority – whether the trial judge erred in relying on that consent – whether the appellant was bound by the way in which Counsel conducted the case

Guardianship and Administration Act 2000 (Qld), s 82, s 84, s 115, s 155, s 185(2), s 193, s 195(2)
Powers of Attorney Act 1998 (Qld), s85
Supreme Court Act 1995 (Qld), s 253
Uniform Civil Procedure Rules 1999 (Qld), r 5(2), r 633, r 637, r 895

Bullock v London General Omnibus Co [1907] 1 KB 264, cited
Gould v Vaggelas (1984) 157 CLR 215; [1984] HCA 68, cited
Harvey v Phillips (1956) 95 CLR 235; [1956] HCA 27, referred to
Morrison v Hudson and Allianz Australia Insurance Limited; [2006] 2 Qd R 465; [2006] QCA 170, cited

COUNSEL:

N M Cooke QC for the appellant
A J Moon for the respondent

SOLICITORS:

Gleeson Lawyers for the appellant
Giudes Elliott for the respondent

JERRARD JA: These proceedings were appeals against orders made in the Trial Division of this Court on 17 November 2006 and 24 November 2006 respectively. Appeal number 11016 of 2006[1] is against orders 6 and 7(a) made on 17 November 2006,[2] after a hearing on 9 November 2006, in…

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 Hodgens v Hodgens

Details

AGLC: Hodgens v Hodgens [2008] QCA 80
Case: [2008] QCA 80
Decision Date: 4 April 2008

CaseChat Overview and Summary

The appeal in Hodgens v Hodgens concerns the refusal of the trial judge to grant leave to appeal against costs. The dispute originated from a family law matter in the Federal Circuit Court. The primary legal issue before the court was whether the trial judge's decision to refuse leave to appeal against costs was within the proper exercise of their discretion. Additionally, the court had to consider whether the trial judge's conclusion that the appellant was heavily responsible for wasted costs was open to them based on the facts presented. The appellant also argued that the trial judge should not have relied on the consent of their counsel, alleging that counsel had exceeded their authority.

The court examined the principles governing appeals and the discretion of trial judges in relation to costs. It considered the extent to which the trial judge's findings of fact could be disturbed and whether the trial judge's reliance on counsel's consent was justified. The court found that the trial judge had not erred in concluding that the appellant was heavily responsible for the wasted costs. The court also determined that the appellant was bound by the conduct of their counsel, as the trial judge had acted on the counsel's representation of consent. The court held that the trial judge's decision not to grant leave to appeal was within their discretion.

As a result of this determination, the court dismissed both appeals. It further ordered that the appellant pay the respondents' costs of and incidental to both appeals, on either an agreed or assessed basis. This decision underscores the importance of the conduct of counsel and the binding effect of their actions on the parties they represent.

Orders

Orders of the court

1. That both appeals be dismissed

2. That the appellant pay the respondents’ costs, agreed or assessed on the standard basis, of and incidental to both appeals

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

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Hodgens v Hodgens and Anor [2008] QCA 80
PARTIES:	ERROL VIVIAN THOMAS HODGENS (applicant/appellant) v RONALD HENRY HODGENS (first respondent) YOLANDE LYVIA KREBS (second respondent)
FILE NO/S:	Appeal No 11016 of 2006 Appeal No 11017 of 2006 SC No 860 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Miscellaneous Application – Civil General Civil Appeal
ORIGINATING COURT:	Supreme Court at Townsville
DELIVERED ON:	4 April 2008
DELIVERED AT:	Brisbane
HEARING DATE:	5 April 2007
JUDGES:	Jerrard JA, Wilson and Lyons JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. That both appeals be dismissed 2. That the appellant pay the respondents’ costs, agreed or assessed on the standard basis, of and incidental to both appeals
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – PARTICULAR CASES – OTHER MATTERS – COSTS – where the trial judge had made an order refusing to grant leave to appeal against costs – whether the decision was within a proper exercise of the trial judge’s discretion APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – FUNCTIONS OF APPELLATE COURT – IN GENERAL – where the trial judge concluded that the appellant was heavily responsible for wasted costs – whether that conclusion was open to the trial judge on the facts APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – COURSE OF CONDUCT AT TRIAL – PARTICULAR CASES – CONDUCT ESTABLISHING AGREEMENT, CONSENT OR DISCLAIMER – where counsel at trial conveyed the consent of the appellant – where the trial judge acted on the consent – where the appellant alleged that counsel had exceeded his authority – whether the trial judge erred in relying on that consent – whether the appellant was bound by the way in which Counsel conducted the case Guardianship and Administration Act 2000 (Qld), s 82, s 84, s 115, s 155, s 185(2), s 193, s 195(2) Powers of Attorney Act 1998 (Qld), s85 Supreme Court Act 1995 (Qld), s 253 Uniform Civil Procedure Rules 1999 (Qld), r 5(2), r 633, r 637, r 895 Bullock v London General Omnibus Co [1907] 1 KB 264, cited Gould v Vaggelas (1984) 157 CLR 215; [1984] HCA 68, cited Harvey v Phillips (1956) 95 CLR 235; [1956] HCA 27, referred to Morrison v Hudson and Allianz Australia Insurance Limited; [2006] 2 Qd R 465; [2006] QCA 170, cited
COUNSEL:	N M Cooke QC for the appellant A J Moon for the respondent
SOLICITORS:	Gleeson Lawyers for the appellant Giudes Elliott for the respondent