Hughes v Maroochydore Black Swan Rugby League Ltd

[1994] QCA 66

IN THE COURT OF APPEAL	[1994] QCA 066
SUPREME COURT OF QUEENSLAND	Appeal No. 134 of 1993
Brisbane
Before Mr Justice Davies Mr Justice Pincus Mr Justice Mackenzie

[Maroochydore Black Swan Rugby League Limited v. The

Workers' Compensation Board of Queensland]

BETWEEN:

IAN LESLIE HUGHES (Plaintiff)

AND:

MAROOCHYDORE BLACK SWAN RUGBY

LEAGUE LIMITED (First Defendant) Appellant

AND:

JOHN ALFRED PINDER (Second Defendant)

AND:

THE WORKERS' COMPENSATION BOARD OF

QUEENSLAND (Third Party) Respondent

ORDERS OF THE COURT

Costs Orders delivered 25/03/1994

The Court gave judgment in this appeal on 21 December 1993 but invited the parties to make written submissions on the question of costs. This was because the notice of appeal sought costs of the third party proceedings on a solicitor and own client basis although there was no evidence that any offer of settlement had been made by the appellant. We received submissions on that question and on that of interest.

The order made for indemnity was in respect of the plaintiff's claim and costs. We propose to order also that the appellant be indemnified by the respondent in respect of its costs incurred in defending the plaintiff's claim. We think that those costs should be part of the indemnity to which it is entitled against the respondent.

However, no satisfactory basis was established for awarding costs of the third party proceedings on an indemnity basis.

Given the state of the authorities on the question to be determined in this appeal, the respondent was justified in defending the appellant's claim and no offer of settlement was made by the appellant. Consequently we propose to order that the respondent pay the appellant's costs of the third party proceedings and this appeal.

Although no interest was sought in the notice of appeal or in oral argument before us, it was agreed in the written submissions which we received on the question of costs that, subject to the matter referred to in the following paragraph, it is appropriate to order that the respondent pay interest on any amounts paid by the appellant to the plaintiff from the date of payment by it to the date of payment by the respondent at ten per cent. We will accordingly make such order.

In its written submissions on costs, the respondent, for the first time in this appeal, contended that the appellant's claim was made in reality on behalf of another insurer seeking contribution rather than indemnity. Nothing in the orders sought in the action or in any evidence in the action supports this. We are not prepared to accept the correctness of this assertion on the basis of what appears to be a contention to that effect in a letter which was not in evidence at the trial or on appeal, particularly in the absence of any opportunity to the appellant to make submissions on this question. We are therefore not prepared to make any order with respect to costs or interest on the assumption of the correctness of that contention.

The following then are the further orders of this Court:

1.   That the respondent pay interest to the appellant at the rate of ten per cent per annum upon any amounts which the appellant paid to the plaintiff in satisfaction of the judgment or costs from the date of such payment to the date of reimbursement thereof by the respondent.

2.    That the respondent indemnify the appellant in respect of its costs of defending the plaintiff's claim.

3.   That the respondent pay the appellant's costs of the third party proceedings and this appeal.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No. 134 of 1993
Brisbane

[Maroochydore Black Swan Rugby League Limited v. The

Workers' Compensation Board of Queensland]

BETWEEN:

IAN LESLIE HUGHES (Plaintiff)

AND:

MAROOCHYDORE BLACK SWAN RUGBY

LEAGUE LIMITED (First Defendant) Appellant

AND:

JOHN ALFRED PINDER (Second Defendant)

AND:

THE WORKERS' COMPENSATION BOARD OF

QUEENSLAND (Third Party) Respondent

____________________________________________________________
_____

DAVIES J.A. PINCUS J.A. MACKENZIE J.

____________________________________________________________

_____

Judgment delivered 21/12/1993

COSTS ORDERS delivered 25/03/1994
____________________________________________________________
_____

1.   THAT THE RESPONDENT PAY INTEREST TO THE APPELLANT AT THE RATE OF TEN PER CENT PER ANNUM UPON ANY AMOUNTS WHICH THE APPELLANT PAID TO THE PLAINTIFF IN SATISFACTION OF THE JUDGMENT OR COSTS FROM THE DATE OF SUCH PAYMENT TO THE DATE OF REIMBURSEMENT THEREOF BY THE RESPONDENT.

2.    THAT THE RESPONDENT INDEMNIFY THE APPELLANT IN RESPECT OF ITS COSTS OF DEFENDING THE PLAINTIFF'S CLAIM.

3.   THAT THE RESPONDENT PAY THE APPELLANT'S COSTS OF THE THIRD PARTY PROCEEDINGS AND THIS APPEAL.

____________________________________________________________

_____ Counsel:	S. Williams Q.C. for the Appellant J. Griffin Q.C. for the Respondent
Solicitors:	Gadens Ridgway for the Appellant Anderssen & Company for the Respondent

Date(s) of Hearing:25 October 1993