Martens v Stokes

[2012] QCA 71

SUPREME COURT OF QUEENSLAND

CITATION:

Martens v Stokes & Anor [2012] QCA 71

PARTIES:

FREDERICK ARTHUR MARTENS
(appellant)
v
TANIA ANN STOKES
(first respondent)
COMMONWEALTH OF AUSTRALIA
(second respondent)

FILE NO/S:

Appeal No 3514 of 2011
SC No 613 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal – Further Orders

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

27 March 2012

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Margaret McMurdo P and White JA and Margaret Wilson AJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

FURTHER ORDERS:

1.Set aside the order that the plaintiff pay the defendants’ costs of and incidental to the application and the action to be assessed on a standard basis.   

2.    Instead, order that the plaintiff pay the defendants’ costs of and incidental to the application to be assessed on the standard basis.

3.    No order as to the costs of the appeal.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where the appellant succeeded on appeal but only to the extent that the claim was not struck out and leave was granted to replead any claim that was not a claim for personal injuries – where the applicant submitted that, given the extent to which the appeal succeeded, there was nothing to displace the general rule espoused in rule 681 Uniform Civil Procedure Rules 1999 (Qld) – where the respondents submitted that there should be no order as to costs of the appeal and that the costs order made at first instance should not be disturbed – whether there should be an order as to the costs of the appeal – whether the costs order at first instance should be set aside

Personal Injuries Proceedings Act 2002 (Qld)
Uniform Civil Procedure Rules 1999 (Qld), r 681

COUNSEL:

No appearance by the appellant, the appellant’s submissions were heard on the papers
No appearance by the respondents, the respondents’ submissions were heard on the papers

SOLICITORS:

Daniel Towne and Associates for the appellant
Australian Government Solicitors for the respondents

1. MARGARET McMURDO P:  I agree with the costs orders proposed by Margaret Wilson AJA.

1. WHITE JA:  I agree with the orders proposed by Margaret Wilson AJA for the reasons which she gives.

1. MARGARET WILSON AJA:  This was an appeal against an order striking out the claim and statement of claim for non-compliance with the pre-litigation requirements of the Personal Injuries Proceedings Act 2002 (Qld) (“PIPA”).  This court allowed the appeal but only to the extent of not striking out the claim and giving the appellant leave to replead any claim that is not a claim for personal injuries.

1. Rule 681 of the Uniform Civil Procedure Rules 1999 (Qld) provides –

“681      General rule about costs

(1)Costs of a proceeding, including an application in a proceeding, are in the discretion of the court but follow the event, unless the court orders otherwise.

(2)Subrule (1) applies unless these rules provide otherwise.”

1. The solicitors for the appellant submitted that, given the extent to which the appeal succeeded, there is nothing to displace the general rule espoused in r 681. It would follow that there should be an order that the respondents pay the appellant’s costs of the appeal. They submitted in the alternative that the costs of the appeal should be costs in the amended proceeding.

1. Counsel for the respondents submitted that there should be no order as to the costs of the appeal.  They submitted that having regard to the appellant’s limited success on the appeal, the appellant is not entitled to his costs of the appeal and there is no warrant for making the costs of the appeal costs in the amended proceeding.  They submitted further that the costs order made at first instance should not be disturbed.

1. The appellant failed on the two principal issues argued on the appeal – whether his claim was within the scope of PIPA and the implications of federal jurisdiction.  This court held that in so far as his claim was one for personal injuries, it was within the scope of PIPA, but his statement of claim was so badly drawn that it was unclear whether some of the claims he was making were beyond the scope of that Act.  Accordingly, it gave him the opportunity to replead.

1. In the circumstances, there should be no order as to the costs of the appeal.

1. The primary judge ordered the plaintiff (the appellant) to pay the defendants’ (the respondents’) costs of and incidental to the application and the action to be assessed “on a [sic] standard basis”.  Because his Honour’s order striking out the claim was set aside on appeal, there should be orders of this court setting aside that costs order and instead ordering that the plaintiff pay the defendants’ costs of and incidental to the application to be assessed on the standard basis.

1. I would make the following orders:

(a)Set aside the order that the plaintiff pay the defendants’ costs of and incidental to the application and the action to be assessed on a standard basis.

(b)Instead, order that the plaintiff pay the defendants’ costs of and incidental to the application to be assessed on the standard basis.

(c)        No order as to the costs of the appeal.