Knight v Kluver

[2002] QCA 1

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

1. 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.

1. 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.

1. 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.

1. 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.

1. The application for an Indemnity Certificate should be refused.