Keating v Morris

[2005] QSC 256

SUPREME COURT OF QUEENSLAND

CITATION:

Keating v Morris & Ors [2005] QSC 256

PARTIES:

DARREN WILLIAM KEATING
(applicant)
v
ANTHONY JOHN MORRIS QC
SIR LLEWELLYN EDWARDS AC
MARGARET VIDER
(first respondents)
THE HONOURABLE THE ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
(second respondent)

THE BUNDABERG HOSPITAL PATIENT SUPPORT GROUP

(third respondent)

FILE NO/S:

BS 5511 of 2005

DIVISION:

Trial Division

PROCEEDING:

Determination of  costs

ORIGINATING COURT:

Supreme Court, Brisbane

DELIVERED ON:

13 September 2005

DELIVERED AT:

Brisbane

HEARING DATE:

2 September 2005

JUDGE:

Moynihan J

ORDER:

That the Attorney-General pay the applicant’s costs of and incidental to the application assessed on a standard basis.1.   

CATCHWORDS:

PROCEDURE – COSTS – DEPARTING FROM GENERAL RULE – ORDER FOR COSTS ON INDEMITY BASIS – whether the applicant is entitled to an order that the costs be assessed on an indemnity basis.

BNP Paribis v Pacific Carriers Limited [2005] NSWCA 72 (unreported)

COUNSEL:

Mr R Mulholland with Mr G Diehm for the applicant;
Mr J Fenton for the first respondents;
Mr J Horton for the second respondent;

Mr G Mullins with Mr J Harper for the third respondent.

SOLICITORS:

Flower & Hart Lawyers for the applicant;
Crown Law for the first and second respondents;

[1]      Carter Capner Lawyers for the third respondent.

1. MOYNIHAN J:  The issue for determination here is whether Keating is entitled to an order that his costs be assessed on an indemnity basis.

1. The submissions in support of such an order relied on BNP Paribis v Pacific
   

   [1] [2005] NSWCA 72 (unreported)

   Carriers Limited[1].

1. BNP Paribis v Pacific Carriers Limited[2] was a case of liability under a contract of indemnity.   There was a question of whether the contract of indemnity allowed for recovery of legal costs on that basis.  The trial judge had found that there was no contract of indemnity and perhaps for that reason did not deal with the question of indemnity costs.  The Court of Appeal dealt with it on the basis that counsel for the party claiming indemnity costs was putting it “as a matter of discretion, taking account of the terms of the indemnity”.

   [2] [2005] NSWCA 72 (unreported)

1. The Court of Appeal held in BNP Paribis v Pacific Carriers Limited[3] that there was no contractual obligation to indemnify for the costs of the litigation which were in issue there and therefore made no order about those costs.

   [3] [2005] NSWCA 72 (unreported)

1. The documents relevant to the applicant’s indemnity costs claim are exhibited to the affidavits of Mr Watt filed 21 July 2005[4] and an affidavit filed by leave on 2 September 2005.

   [4] Document 12 on the court index

1. It is unnecessary for me to analyse this material in detail.  It is suffice to say that there are issues as to whether indemnity costs are, within the terms of the indemnity provided for by the documents and as to whether, assuming for the purpose it was, the indemnity was withdrawn.  I do not think it is appropriate to embark on a resolution of those issues on this application.

1. If the applicant wishes to pursue his contractual entitlement he should bring an action.

1. Those being the considerations I order that the Attorney-General pay the applicant’s costs of and incidental to the application assessed on a standard basis.