Kumer v Suncorp Metway Insurance Ltd & Ors

[2007] QCA 175

SUPREME COURT OF QUEENSLAND

CITATION:

Kumer v Suncorp Metway Insurance Ltd & Ors [2007]
QCA 175

PARTIES:

LESHNI KUMER
(applicant/respondent)
v
SUNCORP METWAY INSURANCE LIMITED
ACN 075 695 966
(first respondent)
NOMINAL DEFENDANT
(second respondent/appellant)
NRMA INSURANCE LIMITED
ACN 000 016 722

(third respondent)

FILE NO/S:

Appeal No 10269 of 2004

SC No 9571 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal – Further Order

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

Judgment delivered 22 July 2005
Further Order delivered 29 May 2007

DELIVERED AT:

Brisbane

HEARING DATE:

20 May 2005

JUDGES:

McMurdo P, Keane JA and Mullins J
Judgment of the Court

FURTHER ORDER:

1. Leave to the applicant to apply for an indemnity certificate under s 15 Appeal Costs Fund Act 1973 (Qld) despite non-compliance with Practice Direction No 1 of 2005, para 37

2.  The orders of this court in Kumer v Suncorp Metway Insurance Ltd & Ors [2005] QCA 254; Appeal No 10269 of 2004, 22 July 2005 are amended by adding the following further order: "4. The respondent is granted an indemnity certificate under s 15(1) Appeal Costs Fund Act 1973 (Qld)"

CATCHWORDS:

PROCEDURE – COSTS – where application made for an indemnity certificate under s 15(1) Appeal Costs Fund Act 1973 (Qld), two years after appeal hearing – where practice direction requires application to be made orally at appeal hearing or by written submissions within seven days – where appeal successful on a point of law giving the Court an unfettered discretion to grant an indemnity certificate – whether indemnity certificate should be granted

Appeal Costs Fund Act 1973 (Qld), s 15(1), s 21(1)

COUNSEL:

K N Wilson SC for the appellant

R D Green for the respondent

SOLICITORS:

Gadens Lawyers for the appellant

Qld Law Group for the respondent

1. THE COURT:  The applicant, Leshni Kumer, was the respondent in an appeal to this Court which was heard on 20 May 2005 and in which judgment was delivered on 22 July 2005: Kumer v Suncorp Metway Insurance Ltd & Ors.[1] The appeal was allowed, the orders in favour of Ms Kumer at first instance insofar as they related to the appellant were set aside and she was ordered to pay the appellant's costs at first instance and of the appeal to be assessed on the standard basis. Her present lawyers now apply to this Court for an order granting Ms Kumer an indemnify certificate under s 15(1) Appeal Costs Fund Act 1973 (Qld) ("the Act").

   [1][2005] QCA 254; Appeal No 10269 of 2004, 22 July 2005.

1. The relevant practice direction requires such an application to be made either orally at the appeal hearing or by written submissions to the Court within seven days of judgment of the Court.[2]  Neither Ms Kumer nor her then lawyers made such an application.

   [2]Practice Direction No 1 of 2005, Court of Appeal, para 37.

1. In pursuing this application, her lawyers emphasise that they were not the solicitors on the record for Ms Kumer at the time of the appeal hearing and decision. 

1. The appeal did succeed on a question of law so that this Court has an unfettered discretion to grant an indemnity certificate: s 15(1) and s 21(1) of the Act. Having now reviewed the reasons for judgment, we are satisfied that this is an appropriate case in which to give Ms Kumer leave to bring the application despite non-compliance with the practice direction and to grant her an indemnity certificate under s 15(1) of the Act.

FURTHER ORDER:

1. Leave to the applicant to apply for an indemnity certificate under s 15 Appeal Costs Fund Act 1973 (Qld) despite non-compliance with Practice Direction No 1 of 2005, para 37.

2.          The orders of this Court in Kumer v Suncorp Metway Insurance Ltd & Ors[3] are amended by adding the following further order: "4. The respondent is granted an indemnity certificate under s 15(1) Appeal Costs Fund Act 1973 (Qld)."

[3]See fn 1.