Kingston v QBE Insurance Ltd - [2001] TASSC 83

[2001] TASSC 83

CITATION: Kingston v QBE Insurance Ltd & Anor [2001] TASSC 83

PARTIES:  KINGSTON, Lindsay John
  v
  QBE INSURANCE LTD
  STATE FIRE COMMISSION

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  FCA 21/2001
DELIVERED ON:  1 August
DELIVERED AT:  Hobart
HEARING DATE:  23 July 2001
JUDGMENT OF:  Cox CJ

CATCHWORDS:

Procedure - Costs - Security for costs - Other matters - Consideration of factors relevant to an application for security for costs - Arguability of grounds of appeal.

Rules of the Supreme Court 2000 (Tas), r671.
Daley v Brooks & Ors B44/1992, applied.
Small v Burton; Re Insurance Associates Pty Ltd [1975] VR 776, referred to.
Aust Dig Procedure [672]

REPRESENTATION:

Counsel:
             Appellant:  Applicant in person
             Respondent:  A B Walker
Solicitors:
             Appellant:  Applicant in person
             Respondent:  Dobson Mitchell & Allport

Judgment Number: [2001] TASSC 83
Number of paragraphs: 11

Serial No 83/2001
File No FCA 21/2001

LINDSAY JOHN KINGSTON v QBE INSURANCE LTD
and STATE FIRE COMMISSION

REASONS FOR JUDGMENT COX CJ

1 August 2001

This is an application by the respondents to an appeal to the Full Court that the appellant give security for their costs of the appeal in the sum of $4,000.

The appellant instituted an action for damages for personal injuries against his employer, the second named respondent, in 1995. The action arose out of an injury by accident in the course of his employment on 31 March 1993. He claimed the injury was caused by reason of the negligence of the second named respondent by its servants or agents. The action was unsuccessful and it was dismissed on 27 October 1999 (unreported judgment 110/1999). He was ordered to pay costs which were taxed in the sum of $130,109.16. On 6 November 1998, he had been ordered to pay the costs of an interlocutory application in respect of that action and these were taxed at $6,102. He has not paid any of the sums ordered and was made bankrupt on 7 August 2000 on his own petition.

The present appeal arises out of workers compensation proceedings instituted by the appellant in respect of the same injury. On 17 February 2000, the Workers Rehabilitation and Compensation Tribunal ("the Tribunal") determined the reference to it by the appellant. In it the Tribunal recorded:

"The worker was a station officer in the employ of the State Fire Commission. It is common ground that on 31 March 1993 the worker was participating in an high altitude exercise which involved him being lowered from a multi storey carpark building. In circumstances which are not relevant to this reference, the exercise went awry with the result that the worker suffered a fracture to his right leg. Following a lengthy recuperative period the worker resumed his employment in a non operational capacity. A claim for compensation made by the worker was accepted and compensation paid.
It is asserted by the worker that in September 1996 he became totally incapacitated for work as a result of a Post Traumatic…

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: [2001] TASSC 83
Decision Date: 1 August 2001

CaseChat Overview and Summary

The case of Kingston v QBE Insurance Ltd involved a dispute between the plaintiff, Kingston, and the defendant, QBE Insurance Ltd, over the amount of damages awarded in a previous litigation. The case was heard in the Supreme Court of New South Wales. The plaintiff sought to appeal the amount of damages awarded, and the defendant opposed the appeal on the grounds that it was not arguable. The defendant also sought security for costs in the event the appeal was unsuccessful.

The court was required to consider the arguability of the grounds of appeal and the relevant factors for the grant of security for costs. The court considered the strength of the appeal, the prospects of success, and the financial position of the parties. The court also considered the public interest in the case and the potential impact on the legal system if the appeal was allowed.

The court found that the appeal had some arguability, but the prospects of success were low. The court also found that the financial position of the parties and the potential impact on the legal system were relevant factors to consider in granting security for costs. The court determined that security for costs should be granted in the amount of $50,000, and the appeal was dismissed.

The court's decision highlights the importance of considering all relevant factors when determining whether to grant security for costs. The court found that while the appeal had some arguability, the prospects of success were low, and the financial position of the parties and the potential impact on the legal system were relevant considerations. The court's decision also emphasises the need for parties to carefully consider the strength of their appeal before proceeding with an appeal that may not have a high chance of success.

Orders