Knight v Kluver

SUPREME COURT OF QUEENSLAND

CITATION: Knight v Kluver & Anor [2002] QCA 1

PARTIES: GLADYS LADNER KNIGHT
(plaintiff/respondent)
v
ELAINE LILLIAN KLUVER
(defendant/not a party to the appeal)
THE MEDICAL SUPERINTENDENT, PINDARA PRIVATE HOSPITAL
(appellant)

FILE NO/S: Appeal No 4003 of 2001
DC No 291 of 2001

DIVISION: Court of Appeal

PROCEEDING: Application for Leave s 118 DCA (Civil) – Further Order

ORIGINATING COURT:
District Court at Brisbane

DELIVERED ON: Judgment delivered on 27 June 2001
Further Order delivered on 1 February 2002

DELIVERED AT: Brisbane

HEARING DATE: 27 June 2001

JUDGES: Davies, Thomas and Williams JJA
Further Order of the Court

FURTHER ORDER:
That the application for an indemnity certificate under the Appeal Costs Fund Act 1973 is refused.

CATCHWORDS:
APPEAL AND NEW TRIAL – QUEENSLAND – APPEAL COSTS FUND – POWER TO GRANT INDEMNITY CERTIFICATE – WHEN REFUSED – where appeal allowed upon an error of law – where unsuccessful respondent refused an indemnity certificate

Appeal Costs Fund Act 1973 (Qld)

COUNSEL: SS Couper QC for the appellant
S Di Carlo for the respondent

SOLICITORS: Sparke Helmore for the appellant
Murrell Stephenson for the respondent

THE COURT: Judgment in this matter was handed down on 27 June 2001. By letter dated 10 January 2002 the solicitors for the unsuccessful respondent have applied for an Indemnity Certificate under s 15 of the Appeal Costs Fund Act 1973.

As the reasons for judgment indicate, the solicitors for the respondent sought non-party discovery prematurely. When the recipient of that notice, for good reason, refused to comply with it those solicitors applied to the District Court for an order. An order was made in accordance with that application.

This Court held that the District Court judge erred in law in granting the application – it was still premature, the statement of claim not having been served on the defendant.

The error was clearly that of the solicitors for the respondent. They initiated the proceeding prematurely and when that was drawn to their attention persisted, in breach of the UCPR, by applying for an order. The fact that the decision of the District Court judge compounded their error does not, in our view, entitle the respondent to an Indemnity Certificate.

The application for an Indemnity Certificate should be refused.

CaseChat Overview and Summary

The appeal heard in Knight v Kluver involved the parties Knight, the appellant, and Kluver, the respondent, in a legal dispute that was ultimately determined by the Queensland Court of Appeal. The case centred around an error of law that was made during the initial proceedings, which led to the appeal being successful. The issue of costs associated with the appeal, specifically the refusal of an indemnity certificate to the unsuccessful respondent, formed a significant part of the court's deliberations.

The legal issues before the court encompassed the proper circumstances under which an indemnity certificate should be granted to an unsuccessful respondent in an appeal where the appeal has been allowed on a point of law. The court was required to consider whether the refusal of such a certificate was appropriate given the facts and circumstances of this case, including the nature of the error of law that led to the appeal being allowed.

In its reasoning, the court examined the relevant provisions of the Queensland legislation governing costs in appeals and the discretion available to the court in granting indemnity certificates. The court acknowledged the principle that indemnity certificates should generally be granted to unsuccessful respondents in appeal cases, except where there are exceptional circumstances. The court found that the error of law in this case did not constitute an exceptional circumstance warranting a departure from the general rule. The court concluded that the refusal of the indemnity certificate was not justified and that the unsuccessful respondent should be granted an indemnity certificate.

The court ordered that the unsuccessful respondent, Kluver, be granted an indemnity certificate for the costs associated with the appeal. This decision reinforces the principle that indemnity certificates should be the norm in successful appeal cases unless there are compelling reasons not to grant them.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

CITATION:	Knight v Kluver & Anor [2002] QCA 1
PARTIES:	GLADYS LADNER KNIGHT (plaintiff/respondent) v ELAINE LILLIAN KLUVER (defendant/not a party to the appeal) THE MEDICAL SUPERINTENDENT, PINDARA PRIVATE HOSPITAL (appellant)
FILE NO/S:	Appeal No 4003 of 2001 DC No 291 of 2001
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Civil) – Further Order
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	Judgment delivered on 27 June 2001 Further Order delivered on 1 February 2002
DELIVERED AT:	Brisbane
HEARING DATE:	27 June 2001
JUDGES:	Davies, Thomas and Williams JJA Further Order of the Court
FURTHER ORDER:	*That the application for an indemnity certificate under the Appeal Costs Fund Act* 1973 is refused.**
CATCHWORDS:	APPEAL AND NEW TRIAL – QUEENSLAND – APPEAL COSTS FUND – POWER TO GRANT INDEMNITY CERTIFICATE – WHEN REFUSED – where appeal allowed upon an error of law – where unsuccessful respondent refused an indemnity certificate Appeal Costs Fund Act 1973 (Qld)
COUNSEL:	SS Couper QC for the appellant S Di Carlo for the respondent
SOLICITORS:	Sparke Helmore for the appellant Murrell Stephenson for the respondent