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.

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

The submissions in support of such an order relied on BNP Paribis v Pacific
[1] [2005] NSWCA 72 (unreported)
Carriers Limited[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)

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)

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

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…

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.

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Details

Case: [2005] QSC 256
Decision Date: 13 September 2005

CaseChat Overview and Summary

In the case of Keating v Morris, the applicant sought an order for costs on an indemnity basis from the Attorney-General. The case was heard in the Federal Court of Australia, where the applicant contended that the standard basis for costs was inadequate given the circumstances of the case. The applicant argued that the case involved exceptional factors justifying a departure from the general rule of costs awarded on a standard basis.

The primary legal issue before the court was whether the applicant was entitled to an order that the costs be assessed on an indemnity basis. The court was required to consider the circumstances that would justify such an order and whether the case met the criteria for exceptional circumstances that warrant an indemnity basis for costs. The court considered the nature of the litigation, the conduct of the parties, and the outcome of the proceedings.

The court deliberated on the nature of the proceedings, noting that the case involved significant public interest and complex legal issues. However, the court found that while the case was indeed complex and of public importance, it did not meet the stringent criteria for an indemnity costs order. The court emphasised the need for exceptional circumstances to justify such an order, and while the case was notable, it did not rise to the level required. Therefore, the court determined that the costs should be assessed on a standard basis.

The final orders of the court mandated that the Attorney-General pay the applicant's costs of and incidental to the application assessed on a standard basis. This decision underscores the stringent criteria required to depart from the general rule in awarding costs and reinforces the principle that such orders are reserved for cases with truly exceptional circumstances.

Orders

Orders of the court

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

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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.