McCoombes v Curragh Qld Mining Ltd - [2001] QCA 379

SUPREME COURT OF QUEENSLAND

CITATION: McCoombes v Curragh Qld Mining Ltd [2001] QCA 379

PARTIES: MALCOLM ADRIAN McCOOMBES
(plaintiff/applicant)
v
CURRAGH QUEENSLAND MINING LIMITED
ACN 010 186 704
(defendant/respondent)

FILE NO/S: Appeal No 7189 of 2001
DC No 59 of 1995

DIVISION: Court of Appeal

PROCEEDING: Application for leave s 118 DCA (civil)

ORIGINATING COURT:
District Court at Brisbane

DELIVERED ON: 14 September 2001

DELIVERED AT: Brisbane

HEARING DATE: 24 August 2001

JUDGES: McMurdo P, Davies JA and Holmes J
Judgment of the Court

ORDER: Application for leave to appeal refused with costs to be assessed

CATCHWORDS:
DAMAGES - GENERAL PRINCIPLES - RECOVERY OF COSTS - where action for damages commenced in the Supreme Court - where action transferred to the District Court without costs order - where District Court ordered the defendant pay the plaintiff's costs taxed on the District Court Scale - where defendant made offer to settle - where offer rejected - where costs assessment by registrar -where defendant objects to all costs incurred prior to remittal - where registrar unwilling to make order for costs incurred prior to remittal - where orders sought in the Supreme Court - where appeal to District Court from registrar's final assessment of costs - where leave sought to appeal from District Court Judge's review of registrar's assessment.

PROCEDURE - SUPREME COURT PROCEDURE - QUEENSLAND - PRACTICE UNDER RULES OF COURT - REGISTRY AND REGISTRA'S - where registrar had the power to assess costs incurred prior to remittal under s 77(6)(b)(i) District Court Act 1967 (Qld)

PROCEDURE - COSTS - SCALE OF COSTS - where question as to interpretation of the District Court Scale Item 27 - where the approach taken by the District Court Judge does not warrant the granting of leave to appeal

INTERPRETATION - GENERAL RULES - whether the offer to settle under UCPR r 721(2)(b) requires the offer to 'be for all of the person's liability for costs to the party to whom it is made' - where the District Court Judge was correct in considering the offer to settle was an offer under UCPR r 721

District Court Act 1967 (Qld), s 77(6), s 77(6)(b), s 118(3)
Uniform Civil Procedure Rules r 2, r 686, r 686(1), r 686(2)(a), r 686(3), r 690(5), r 690(6), r 706, r 709, r 710, r 717, r 721, r 721(2)(b), r 721(3)(c), r 722(4), r 742

Boral Resources (Queensland ) Pty Ltd v Trim, Londy & Sutton, Appeal No 23 of 1993, 2 December 1996

House v The King (1936) 55 CLR 499, referred to

COUNSEL: R V Hanson QC, with S P Gray for the applicant
G J Robinson for the respondent

SOLICITORS: Rees R & Sydney Jones (Rockhampton) for the applicant
Bain Gasteen for the respondent

THE COURT: This is an application for leave to appeal under s118(3) District Court Act 1967 (Qld) from a District Court judge's review[1] of a Deputy Registrar's assessment of costs.
[1]UCPR r 742.

It will be convenient if we refer…

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.

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Details

Case: [2001] QCA 379
Decision Date: 14 September 2001

CaseChat Overview and Summary

McCoombes, the plaintiff, filed a lawsuit against Curragh Qld Mining Ltd, the defendant, seeking damages. The case was initially brought in the Supreme Court, but it was later transferred to the District Court without a costs order. The District Court ordered the defendant to pay the plaintiff's costs according to the District Court Scale. The defendant made a settlement offer, which was rejected. The costs were assessed by a registrar, but the defendant objected to all costs incurred prior to the transfer. The registrar did not grant an order for those costs. The plaintiff sought orders in the Supreme Court, and the defendant appealed to the District Court from the registrar's final assessment of costs. The defendant also sought leave to appeal from the District Court Judge's review of the registrar's assessment.

The court had to decide whether the registrar had the authority to assess costs incurred prior to the transfer under section 77(6)(b)(i) of the District Court Act 1967 (Qld). It also had to determine whether the District Court Judge's approach to interpreting District Court Scale Item 27 was correct and whether the offer to settle required the offer to be for all of the defendant's liability for costs under UCPR r 721(2)(b). The court needed to decide if the District Court Judge was correct in considering the offer to settle as an offer under UCPR r 721.

The court found that the registrar had the power to assess costs incurred prior to the transfer under section 77(6)(b)(i) of the District Court Act 1967 (Qld). The court also found that the District Court Judge's approach to interpreting District Court Scale Item 27 was correct and did not warrant the granting of leave to appeal. The court found that the offer to settle did not require the offer to be for all of the defendant's liability for costs under UCPR r 721(2)(b). The court found that the District Court Judge was correct in considering the offer to settle as an offer under UCPR r 721.

The court refused the application for leave to appeal and ordered the defendant to pay the costs to be assessed.

Orders

Orders of the court

Application for leave to appeal refused with costs to be assessed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	McCoombes v Curragh Qld Mining Ltd [2001] QCA 379
PARTIES:	MALCOLM ADRIAN McCOOMBES (plaintiff/applicant) v CURRAGH QUEENSLAND MINING LIMITED ACN 010 186 704 (defendant/respondent)
FILE NO/S:	Appeal No 7189 of 2001 DC No 59 of 1995
DIVISION:	Court of Appeal
PROCEEDING:	Application for leave s 118 DCA (civil)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	14 September 2001
DELIVERED AT:	Brisbane
HEARING DATE:	24 August 2001
JUDGES:	McMurdo P, Davies JA and Holmes J Judgment of the Court
ORDER:	Application for leave to appeal refused with costs to be assessed
CATCHWORDS:	DAMAGES - GENERAL PRINCIPLES - RECOVERY OF COSTS - where action for damages commenced in the Supreme Court - where action transferred to the District Court without costs order - where District Court ordered the defendant pay the plaintiff's costs taxed on the District Court Scale - where defendant made offer to settle - where offer rejected - where costs assessment by registrar -where defendant objects to all costs incurred prior to remittal - where registrar unwilling to make order for costs incurred prior to remittal - where orders sought in the Supreme Court - where appeal to District Court from registrar's final assessment of costs - where leave sought to appeal from District Court Judge's review of registrar's assessment. PROCEDURE - SUPREME COURT PROCEDURE - QUEENSLAND - PRACTICE UNDER RULES OF COURT - REGISTRY AND REGISTRA'S - where registrar had the power to assess costs incurred prior to remittal under s 77(6)(b)(i) District Court Act 1967 (Qld) PROCEDURE - COSTS - SCALE OF COSTS - where question as to interpretation of the District Court Scale Item 27 - where the approach taken by the District Court Judge does not warrant the granting of leave to appeal INTERPRETATION - GENERAL RULES - whether the offer to settle under UCPR r 721(2)(b) requires the offer to 'be for all of the person's liability for costs to the party to whom it is made' - where the District Court Judge was correct in considering the offer to settle was an offer under UCPR r 721 District Court Act 1967 (Qld), s 77(6), s 77(6)(b), s 118(3) Uniform Civil Procedure Rules r 2, r 686, r 686(1), r 686(2)(a), r 686(3), r 690(5), r 690(6), r 706, r 709, r 710, r 717, r 721, r 721(2)(b), r 721(3)(c), r 722(4), r 742 Boral Resources (Queensland ) Pty Ltd v Trim, Londy & Sutton, Appeal No 23 of 1993, 2 December 1996 House v The King (1936) 55 CLR 499, referred to
COUNSEL:	R V Hanson QC, with S P Gray for the applicant G J Robinson for the respondent
SOLICITORS:	Rees R & Sydney Jones (Rockhampton) for the applicant Bain Gasteen for the respondent