Irving v Pfingst - [2022] QCA 19

SUPREME COURT OF QUEENSLAND

CITATION:

Irving v Pfingst & Anor [2022] QCA 19

PARTIES:

TERRY IRVING
(appellant)
v
HELEN MAREE PFINGST
(first respondent)
STATE OF QUEENSLAND
(second respondent)

FILE NO/S:

Appeal No 10781 of 2020
SC No 234 of 1999

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal – Further Order

ORIGINATING COURT:

Supreme Court at Brisbane – [2020] QSC 280 (Brown J)

DELIVERED ON:

18 February 2022

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Fraser, McMurdo and Mullins JJA

ORDER:

The respondents pay 50 per cent of the appellant’s costs of the appeal.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where the appeal was allowed and the appellant sought an order for the costs of the appeal – where the appellant succeeded in obtaining judgment for damages to be assessed for a claim for malicious prosecution and was unsuccessful on his appeal against the judgment in favour of the respondents on the second claim for malicious prosecution – where the respondents sought to pay no more than 20 per cent of the appellant’s costs of the appeal – where a broad assessment was made to reflect the distinct success of both parties on the appeal

Irving v Pfingst & Anor[2021] QCA 280, related
Nine Network Australia Pty Ltd & Ors v Wagner & Ors[2021] QCA 84, cited

COUNSEL:

G R Mullins, with E M Gass, for the appellant
S A McLeod QC, with M R Wilkinson, for the respondents

SOLICITORS:

Maurice Blackburn Lawyers for the appellant
G R Cooper, Crown Solicitor for the respondents

THE COURT: On publication of the orders and reasons in Irving v Pfingst & Anor [2021] QCA 280, the parties made written submissions on costs in respect of the appeal. At first instance, the appellant’s claims for damages in respect of the first malicious prosecution for the accessory charge and the second malicious prosecution for the robbery charge were dismissed. The result of the appeal was that judgment was entered in the appellant’s favour for damages to be assessed for the claim for the first malicious prosecution.
The appellant seeks an order that the respondents pay the appellant’s costs of the appeal, as the appellant succeeded on the appeal (even though it was only in relation to the first malicious prosecution) and that justified an order for costs on the usual basis that costs follow the event. The appellant relies on Courtney v Chalfen [2021] QCA 25 at [4]-[5].
The respondent submits that the costs order should reflect the appellant’s limited success in the appeal which it describes as success on two only of nine grounds of appeal and only in relation to the first malicious prosecution which was limited in time to the period between 18 and 25 May 1993 in circumstances where the second malicious prosecution claim covered most of the appellant’s period of imprisonment and was the larger component of the appellant’s claim for damages…

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 Irving v Pfingst

Details

AGLC: Irving v Pfingst [2022] QCA 19
Case: [2022] QCA 19
Decision Date: 18 February 2022

CaseChat Overview and Summary

The appeal in Irving v Pfingst was brought before the court by the appellant, who had previously obtained judgment for damages to be assessed in a claim for malicious prosecution against the respondents. The respondents, in turn, had been successful in their defense against the appellant's second claim for malicious prosecution. The appellant sought an order for the costs of the appeal, while the respondents argued for an order limiting their liability to no more than 20 per cent of the appellant’s costs. The legal issues before the court involved determining the appropriate allocation of costs between the parties, considering their respective levels of success on appeal.

The court examined the degree of success achieved by each party on the appeal. The appellant was successful in securing judgment on the first claim for malicious prosecution, while the respondents successfully defended the second claim. The court recognised that both parties had distinct successes on the appeal, which warranted a broad assessment of the costs. The court further considered the arguments presented by the respondents that they should only be liable for 20 per cent of the appellant’s costs, due to their partial success in defending the second claim. However, the court concluded that the respondents' liability should be higher to reflect the appellant's significant success on the first claim.

In reaching its decision, the court balanced the respective successes of the parties on the appeal. The court determined that the appellant's success on the first claim warranted a substantial proportion of the costs, while acknowledging the respondents' success in defending the second claim. Ultimately, the court ordered that the respondents pay 50 per cent of the appellant's costs of the appeal, reflecting the distinct success achieved by both parties. This decision balanced the financial burden between the parties in accordance with their respective levels of success on the appeal.

Orders

Orders of the court

The respondents pay 50 per cent of the appellant’s costs of the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Irving v Pfingst & Anor [2022] QCA 19
PARTIES:	TERRY IRVING (appellant) v HELEN MAREE PFINGST (first respondent) STATE OF QUEENSLAND (second respondent)
FILE NO/S:	Appeal No 10781 of 2020 SC No 234 of 1999
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal – Further Order
ORIGINATING COURT:	Supreme Court at Brisbane – [2020] QSC 280 (Brown J)
DELIVERED ON:	18 February 2022
DELIVERED AT:	Brisbane
HEARING DATE:	Heard on the papers
JUDGES:	Fraser, McMurdo and Mullins JJA
ORDER:	The respondents pay 50 per cent of the appellant’s costs of the appeal.
CATCHWORDS:	APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where the appeal was allowed and the appellant sought an order for the costs of the appeal – where the appellant succeeded in obtaining judgment for damages to be assessed for a claim for malicious prosecution and was unsuccessful on his appeal against the judgment in favour of the respondents on the second claim for malicious prosecution – where the respondents sought to pay no more than 20 per cent of the appellant’s costs of the appeal – where a broad assessment was made to reflect the distinct success of both parties on the appeal Irving v Pfingst & Anor[2021] QCA 280, related Nine Network Australia Pty Ltd & Ors v Wagner & Ors[2021] QCA 84, cited
COUNSEL:	G R Mullins, with E M Gass, for the appellant S A McLeod QC, with M R Wilkinson, for the respondents
SOLICITORS:	Maurice Blackburn Lawyers for the appellant G R Cooper, Crown Solicitor for the respondents