Martin v Rowling - [2005] QCA 174

SUPREME COURT OF QUEENSLAND

CITATION:

Martin v Rowling & Anor [2005] QCA 174

PARTIES:

JULANNE MARTIN
(plaintiff/appellant)
v
HELEN ROWLING
(first defendant)
SUNCORP METWAY INSURANCE LTD
ACN 075 695 966

(second defendant/respondent)

FILE NO/S:

Appeal No 5840 of 2004

SC No 3606 of 2000

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal – Further Order

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

Judgment delivered 27 April 2005

Further Order delivered 27 May 2005

DELIVERED AT:

Brisbane

HEARING DATE:

9 November 2004

JUDGES:

McMurdo P, Fryberg and Mullins JJ

Judgment of the Court

FURTHER ORDERS:

1.The respondent must pay the appellant’s costs of Appeal No 5840 of 2004

2.The costs in respect of the trial of the proceeding that took place in February 2004 be determined by the trial judge at the conclusion of the new trial of the proceeding

3.Grant the respondent an indemnity certificate pursuant to s 15(1) of the Appeal Costs Fund Act 1973 (Qld) in respect of Appeal No 5840 of 2004

CATCHWORDS:

PROCEDURE – COSTS – where new trial ordered – whether costs of the first trial should abide result of new trial

PROCEDURE – COSTS – where appeal successful on errors of law – whether indemnity certificate pursuant to s 15(1) Appeal Costs Fund Act 1973 (Qld) should be granted in respect of appeal

Appeal Costs Fund Act 1973 (Qld), s 15

Malpas v Malpas (1885) 11 VLR 670, applied

Brown v Mahony [1967] Qd R 592, applied

COUNSEL:

S S W Couper QC, with G R Mullins, for the appellant

K N Wilson SC, with R F King-Scott, for the respondent

SOLICITORS:

McInnes Wilson Lawyers for the appellant

Jensen McConaghy for the respondent

THE COURT: When the reasons for judgment in this appeal were published on 27 April 2005 (Martin v Rowling & Anor [2005] QCA 128), each party was given leave to make written submissions with respect to costs orders in respect of the appeal and the order for costs in respect of the trial of the proceeding that took place in February 2004 (“the first trial”).

The appellant is the plaintiff in a claim for damages for personal injuries arising out of a motor vehicle accident. Liability was not in issue at the first trial. The issue was the quantum of damages. The appellant had appealed against the learned trial judge’s assessment of damages.

The appellant was successful in her appeal in obtaining orders that the appeal be allowed, the judgment in her favour given on 9 June 2004 be set aside, the orders for costs made on 8 September 2004 be set aside and the proceeding be remitted to the Trial Division for a new trial.

Orders sought by the respondent

The respondent applies for an indemnity certificate pursuant to s 15 of the Appeal Costs Fund Act 1973 (Qld) (“the Act”) on the basis that the appeal succeeded on a question of law, namely insufficient reasons for judgment by the learned trial judge. The respondent accepts that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Martin v Rowling

Details

AGLC: Martin v Rowling [2005] QCA 174
Case: [2005] QCA 174
Decision Date: 27 April 2005

CaseChat Overview and Summary

In the case of Martin v Rowling, the dispute between the parties arose from a legal matter that was brought before the Queensland Court of Appeal. The original trial had concluded, and the matter was now being reviewed on appeal due to perceived errors of law during the initial proceedings. The central issue before the court was whether the costs incurred during the first trial should remain the responsibility of the parties involved or if they should be subject to change based on the outcome of the new trial. Additionally, the court had to determine whether, given the successful nature of the appeal due to errors of law, an indemnity certificate should be issued under section 15(1) of the Appeal Costs Fund Act 1973 (Qld) to cover the costs of the appeal.

The Queensland Court of Appeal considered the implications of the errors of law that led to the new trial being ordered. The court examined the provisions of the Appeal Costs Fund Act 1973 (Qld) and the principles governing costs in cases where a new trial is ordered due to procedural errors. The court recognised that if an appeal is successful on the grounds of errors of law, the prevailing party is typically entitled to indemnity costs. However, the court also noted that the decision to grant such costs is discretionary and must be exercised with consideration of the circumstances of the case. The court concluded that an indemnity certificate should be granted to cover the costs of the appeal, as the appeal was successful due to errors of law and the successful party should not bear the burden of those costs.

In summary, the Queensland Court of Appeal determined that the costs incurred in the first trial should not remain the responsibility of the parties if the new trial results in a different outcome. Additionally, the court granted an indemnity certificate under section 15(1) of the Appeal Costs Fund Act 1973 (Qld) to cover the costs of the appeal, recognising the successful nature of the appeal due to errors of law. The final orders of the court ensured that the successful party was not left to bear the costs of the appeal, aligning with the statutory provisions and principles of equity.

Orders