Kemp Meats Pty Ltd v Tompkins

[2014] QCA 162

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

1. 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.

1. 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.

1. 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.

1. 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.