Martin v Rowling

[2004] QSC 330

SUPREME COURT OF QUEENSLAND

CITATION:

Martin v Rowling & Anor [2004] QSC 330

PARTIES:

JULANNE MARY MARTIN
(plaintiff)
v
HELEN ROWLING
(first defendant)
and
SUNCORP METWAY INSURANCE LIMITED (ACN 075 695 966)
(second defendant)

FILE NO/S:

S 3606 of 2000

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court Brisbane

DELIVERED ON:

23 September 2004

DELIVERED AT:

Brisbane

HEARING DATE:

8, 22 September 2004

JUDGE:

Douglas J

ORDER:

Order that the plaintiff have leave to appeal from the decision as to costs made in this matter on 8 September 2004.
Reserve to the Court of Appeal the costs of and incidental to this application. 

CATCHWORDS:

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND - WHEN APPEAL LIES - BY LEAVE OF COURT - COSTS ORDERS – Principles for granting leave – Where a point of principle may have been identified - Where an appeal has been instituted challenging the decision at the trial

Supreme Court Act 1995 (Qld), s. 253

Emanuel Management Pty Ltd v Fosters Brewing Group [2003] QSC 484, followed
Di Carlo v Dubois [2004] QSC 041, distinguished

COUNSEL:

Mr G R Mullins for the plaintiff
Mr S E Jensen (solicitor) for the defendants

SOLICITORS:

McInnes Wilson Lawyers for the plaintiff
Jensen McConaghy Solicitors for the defendants

1. DOUGLAS J: On 8 September 2004 I made orders as to costs in this matter that the second defendant pay the plaintiff’s standard basis costs until 11 December 2002 and the plaintiff pay the first and second defendants’ costs including reserved costs on a standard basis from 12 December 2002. The costs order was affected by the making of an offer by the second defendant that was more favourable than the result obtained by the plaintiff at the trial. The plaintiff seeks leave to appeal from that costs decision under s. 253 of the Supreme Court Act 1995.

1. The parties wished to make written submissions about that issue and have done so. 

1. One reason advanced for the plaintiff why leave to appeal is justified is that I failed to give any or any adequate weight in the exercise of my discretion as to costs to the change in circumstances brought about by the issues raised in the amended defence filed 25 September 2003 in conjunction with the further material disclosed at the adjourned hearing on 4 August 2003, in particular, as to the change in circumstances related to possible credit findings against the plaintiff.  The second argument relied upon is that I erred in law in misdirecting myself by undertaking a comparison between the main issues at the trial and the main issues at the time of the offer to settle rather than focussing on the circumstances that existed at the time that the offer to settle was made and rejected.

1. The argument advanced is that the availability of the new evidence significantly increased the risk of litigation for the plaintiff so that, irrespective of the role that her credit ultimately played in the trial, the circumstances that operated at the time she rejected the offer had significantly changed.  The point of principle said to arise is that there may be a change in circumstances which has nothing to do with the ultimate outcome of a trial but which was likely to have had a significant impact upon the plaintiff’s decision to accept or reject an offer which should be taken into account by the Court in making its decision as to costs. 

1. As Chesterman J pointed out in Emanuel Management Pty Ltd v Fosters Brewing Group [2003] QSC 484 at [39] the plaintiff’s task here is not to persuade me that I was wrong but there is a need to identify circumstances which will be relied upon for the purpose of arguing to the Court of Appeal that it might form a different opinion about the appropriate order as to costs.

1. It seems to me that, unlike the situation that applied in Emanuel or Di Carlo v Dubois [2004] QSC 041 at [18], there has been an attempt by the plaintiff to particularise how my orders are vulnerable to attack in circumstances where a point of principle may have been identified. There is also an appeal that has been instituted challenging my decision at the trial. In the circumstances it seems appropriate to give the plaintiff leave.

1. Accordingly I give leave for the plaintiff to appeal from my decision as to costs made on 8 September 2004 and reserve to the Court of Appeal the costs of and incidental to this application.