Kemp Meats Pty Ltd v Tompkins

SUPREME COURT OF QUEENSLAND

CITATION:

Kemp Meats Pty Ltd v Tompkins [2014] QCA 162

PARTIES:

KEMP MEATS PTY LTD
ACN 088 931 024 as trustee for the KEMP MEAT TRUST
(appellant)
v
KEITH LOUIS TOMPKINS
(respondent)

FILE NO/S:

Appeal No 7438 of 2013
DC No 294 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal – Further Orders

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

18 July 2014

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Margaret McMurdo P and Holmes and Fraser JJA
Judgment of the Court

ORDERS:

Judgment is given for the respondent in the sum of $202,068.61.1.

The application for an indemnity certificate under s 15(1) of the Appeal Costs Fund Act 1973 is refused.2.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – APPEAL COSTS FUND – POWER TO GRANT INDEMNITY CERTIFICATE – WHEN REFUSED – where the appellant was the defendant in a personal injuries action – where the appellant failed in its appeal on liability but succeeded in respect of quantum – whether, given the mixed result, any order should be made in respect of the costs of the appeal – where the respondent applied for an indemnity certificate under s 15(1) of the Appeal Costs Fund Act 1973 on the basis that the trial judge made errors of law – where the respondent supported the trial judge’s fundamental error in calculating damages – whether an indemnity certificate should be granted

Appeal Costs Fund Act 1973 (Qld), s 15(1)

COUNSEL:

No appearance for the appellant, the appellant’s submissions were heard on the papers
No appearance for the respondent, the respondent’s submissions were heard on the papers

SOLICITORS:

BT Lawyers for the appellant
Macrossan & Amiet for the respondent

THE COURT: This appeal having been allowed and the judgment set aside, the parties were given leave to deliver submissions as to the amount for which judgment should now be given and as to costs. The respondent has pointed out a small error of calculation in respect of past economic loss. Adjusting for that error, the amount of judgment should be $202,068.61.

The appellant succeeded only in its appeal against quantum; the respondent successfully resisted its argument that contributory negligence should have been found against him. Given that mixed outcome, it is appropriate to make no order for the costs of the appeal.

The respondent has applied for an indemnity certificate under s 15(1) of the Appeal Costs Fund Act 1973, arguing that the trial judge made errors of law in failing to use the 5 per cent discount tables to calculate future economic loss, in failing to have regard to an orthopaedic specialist’s opinion concerning his shoulder injury and in calculating past economic loss over an incorrect period. It is doubtful that the third was an error of law. More importantly, the failure to have due regard to the specialist’s report was but one aspect of the central mistake in relation to awarding of economic loss: the finding that Mr Tompkins could, but for his injury, have continued working as a delivery driver for 15 years. That was an error actively supported by the respondent. The application for an indemnity certificate should be refused.

The further orders are:

1. Judgment is given for the respondent in the sum of $202,068.61.

2. The application for an indemnity certificate under s 15(1) of the Appeal Costs Fund Act 1973 is refused.

In the case of Kemp Meats Pty Ltd v Tompkins, the appellant, Kemp Meats, was the defendant in a personal injury action. The respondent, Tompkins, had been awarded damages in the primary trial. Kemp Meats appealed the decision, arguing that the trial judge made errors in the assessment of liability and damages. The Court of Appeal found that while the trial judge erred in assessing damages, the error was not fundamental, and as such, Tompkins was entitled to damages. However, the Court of Appeal found in favour of Kemp Meats on the issue of liability, and therefore, the total damages were reduced. The respondent then applied for an indemnity certificate under section 15(1) of the Appeal Costs Fund Act 1973, arguing that the trial judge's errors warranted the granting of the certificate.

The court was required to determine whether an indemnity certificate should be granted to the respondent given the mixed outcome of the appeal. The court considered the nature of the errors made by the trial judge, the extent to which those errors impacted the final outcome, and whether the respondent's success on appeal was sufficient to warrant the granting of the certificate. The court had to balance the respondent's partial success on appeal with the appellant's success in reducing the damages awarded.

The court found that the trial judge's errors were not fundamental and that the respondent's success on appeal was not sufficient to warrant the granting of an indemnity certificate. The court noted that the respondent had succeeded in having the damages reduced by the Court of Appeal, but this did not outweigh the appellant's success in reducing the damages. The court found that the respondent's application for an indemnity certificate should be refused. The court also noted that the respondent had supported the trial judge's fundamental error in calculating damages, which further undermined the respondent's position.

The court's final orders were that judgment was given for the respondent in the sum of $202,068.61, and the application for an indemnity certificate under section 15(1) of the Appeal Costs Fund Act 1973 was refused.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

CITATION:	Kemp Meats Pty Ltd v Tompkins [2014] QCA 162
PARTIES:	KEMP MEATS PTY LTD ACN 088 931 024 as trustee for the KEMP MEAT TRUST (appellant) v KEITH LOUIS TOMPKINS (respondent)
FILE NO/S:	Appeal No 7438 of 2013 DC No 294 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal – Further Orders
ORIGINATING COURT:	District Court at Townsville
DELIVERED ON:	18 July 2014
DELIVERED AT:	Brisbane
HEARING DATE:	Heard on the papers
JUDGES:	Margaret McMurdo P and Holmes and Fraser JJA Judgment of the Court
ORDERS:	Judgment is given for the respondent in the sum of $202,068.61.1. *The application for an indemnity certificate under s 15(1) of the Appeal Costs Fund Act* 1973 is refused.**2.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – APPEAL COSTS FUND – POWER TO GRANT INDEMNITY CERTIFICATE – WHEN REFUSED – where the appellant was the defendant in a personal injuries action – where the appellant failed in its appeal on liability but succeeded in respect of quantum – whether, given the mixed result, any order should be made in respect of the costs of the appeal – where the respondent applied for an indemnity certificate under s 15(1) of the Appeal Costs Fund Act 1973 on the basis that the trial judge made errors of law – where the respondent supported the trial judge’s fundamental error in calculating damages – whether an indemnity certificate should be granted Appeal Costs Fund Act 1973 (Qld), s 15(1)
COUNSEL:	No appearance for the appellant, the appellant’s submissions were heard on the papers No appearance for the respondent, the respondent’s submissions were heard on the papers
SOLICITORS:	BT Lawyers for the appellant Macrossan & Amiet for the respondent