Merrin v Cairns Port Authority - [2002] QCA 290

SUPREME COURT OF QUEENSLAND

CITATION:

Merrin & Anor v Cairns Port Authority [2002] QCA 290

PARTIES:

ANNETTE ELIZABETH MERRIN
THOMAS WILLIAM MERRIN
(Plaintiffs/Appellants/Applicants)
v
CAIRNS PORT AUTHORITY
(Defendant/Respondent)

FILE NO/S:

CA No 11540 of 1999
DC 153 of 1997

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal - further order

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

Judgment delivered on 15 May 2001
Further Order delivered on 9 August 2002

DELIVERED AT:

Brisbane

HEARING DATE:

23 and 24 April 2001; 24 July 2002

JUDGES:

McPherson and Williams JJA and White J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made.

ORDERS:

1.Declare that the action referred to in the order of this Court made on 15 May 2001, being action no 153 of 1997 in the District Court at Cairns, has not been concluded.

2. That the respondent firm of Thompson & Royds submit the bill or costs statement, referred to in their letter dated 28 August 2001 to the applicants, to the Senior Deputy Registrar (Assessments) of the Supreme Court sitting in Brisbane for taxation or assessment and for certification to this Court of the amount properly claimable by that respondent under that bill or statement of their costs as solicitors for the applicants in the first trial of that action.

3.That the applicants pay the costs of and incidental to this application of the respondent Cairns Port Authority.

4.That save as in 3, the applicants’ costs of and incidental to this application be paid by the respondent firm Thompson & Royds.

5.The Registrar of the Court of Appeal is directed to provide a copy of these reasons to Legal Aid Queensland.

CATCHWORDS:

PROCEDURE - COSTS - JURISDICTION - GENERAL - Repeal of Costs Act 1867 - whether Court has jurisdiction to order taxation of solicitor’s bill to client

PROCEDURE - COSTS - DEPARTING FROM THE GENERAL RULE - NATURE OF PROCEEDINGS - INCONCLUSIVE PROCEEDINGS - NEW TRIAL - whether costs of first trial ordered on appeal are owed before new trial concluded

Costs Act 1867 (Qld)
Legal Aid Queensland Act 1997 (Qld) s 31
Queensland Law Society Act 1952 (Qld) s 6ZA(1)(b), s 6ZC(2)
s 48J, s 48K(1)(a)
Trusts Act 1973 (Qld), s 102
Uniform Civil Procedure Rules, r 702

Ex p Patience; Makinson v The Minister (1940) 40 SR (NSW) 96, discussed
Re Johnson & Weatherall (1888) 37 Ch D 433, followed
Storer & Co v Johnson & Weatherall (1890) 15 App Cas 203, mentioned
Woolf v Snipe (1933) 48 CLR 677, 678, applied

COUNSEL:

The appellants appeared on their own behalf
K J McGhee for the respondent
W J Markwell for Thompson & Royds Lawyers by leave of the Court

SOLICITORS:

The appellants appeared on their own behalf
MacDonnells Solicitors (Brisbane) for the respondent

McPHERSON JA: On 15 May 2001 the applicants Mr and Mrs Merrin (to whom I shall refer here as the plaintiffs) succeeded in their appeal against a directed verdict and…

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: [2002] QCA 290
Decision Date: 15 May 2001

CaseChat Overview and Summary

The matter of Merrin v Cairns Port Authority was heard by the Court of Appeal, where the primary concern was the jurisdiction of the court to order the taxation of a solicitor's bill to the client following the repeal of the Costs Act 1867 in Queensland. The second issue addressed was whether costs of the first trial ordered on appeal were payable before the conclusion of a new trial. The appeal originated from a decision of the District Court, which had ordered costs against the applicants in the first trial.

The legal issues before the court encompassed the court's jurisdiction post-repeal of the Costs Act 1867 to order taxation of a solicitor's bill to the client, and whether the costs from the first trial were payable prior to the conclusion of a new trial. The court examined the statutory provisions, including the Legal Aid Queensland Act 1997, Queensland Law Society Act 1952, Trusts Act 1973, and the Uniform Civil Procedure Rules, to determine the appropriate legal framework for assessing costs. Additionally, the court reviewed precedent cases, such as Ex p Patience; Makinson v The Minister, Re Johnson & Weatherall, Storer & Co v Johnson & Weatherall, and Woolf v Snipe, to understand the implications of the repealed act on current legal practice.

The Court of Appeal found that the court retains jurisdiction to order the taxation of a solicitor's bill to the client, even after the repeal of the Costs Act 1867. The court held that the new legal framework allows for such orders to be made, and thus, the respondent firm of Thompson & Royds was required to submit the bill for taxation to the Senior Deputy Registrar. Regarding the second issue, the court determined that the costs from the first trial were not payable until the new trial concluded, as the first trial was deemed inconclusive. Consequently, the court directed the Registrar of the Court of Appeal to provide a copy of the reasons to Legal Aid Queensland.

In summary, the court ordered that the action in question had not been concluded, mandated the taxation of the solicitor's bill, and clarified the payment of costs between the parties involved. The applicants were to pay the costs of the appeal to the Cairns Port Authority, while the respondent firm Thompson & Royds was to cover the applicants' costs related to the application itself.

Orders

Orders of the court

1.Declare that the action referred to in the order of this Court made on 15 May 2001, being action no 153 of 1997 in the District Court at Cairns, has not been concluded.

2. That the respondent firm of Thompson & Royds submit the bill or costs statement, referred to in their letter dated 28 August 2001 to the applicants, to the Senior Deputy Registrar (Assessments) of the Supreme Court sitting in Brisbane for taxation or assessment and for certification to this Court of the amount properly claimable by that respondent under that bill or statement of their costs as solicitors for the applicants in the first trial of that action.

3.That the applicants pay the costs of and incidental to this application of the respondent Cairns Port Authority.

4.That save as in 3, the applicants’ costs of and incidental to this application be paid by the respondent firm Thompson & Royds.

5.The Registrar of the Court of Appeal is directed to provide a copy of these reasons to Legal Aid Queensland.

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:	Merrin & Anor v Cairns Port Authority [2002] QCA 290
PARTIES:	ANNETTE ELIZABETH MERRIN THOMAS WILLIAM MERRIN (Plaintiffs/Appellants/Applicants) v CAIRNS PORT AUTHORITY (Defendant/Respondent)
FILE NO/S:	CA No 11540 of 1999 DC 153 of 1997
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal - further order
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	Judgment delivered on 15 May 2001 Further Order delivered on 9 August 2002
DELIVERED AT:	Brisbane
HEARING DATE:	23 and 24 April 2001; 24 July 2002
JUDGES:	McPherson and Williams JJA and White J Separate reasons for judgment of each member of the Court, each concurring as to the orders made.
ORDERS:	1.Declare that the action referred to in the order of this Court made on 15 May 2001, being action no 153 of 1997 in the District Court at Cairns, has not been concluded. 2. That the respondent firm of Thompson & Royds submit the bill or costs statement, referred to in their letter dated 28 August 2001 to the applicants, to the Senior Deputy Registrar (Assessments) of the Supreme Court sitting in Brisbane for taxation or assessment and for certification to this Court of the amount properly claimable by that respondent under that bill or statement of their costs as solicitors for the applicants in the first trial of that action. 3.That the applicants pay the costs of and incidental to this application of the respondent Cairns Port Authority. 4.That save as in 3, the applicants’ costs of and incidental to this application be paid by the respondent firm Thompson & Royds. 5.The Registrar of the Court of Appeal is directed to provide a copy of these reasons to Legal Aid Queensland.
CATCHWORDS:	PROCEDURE - COSTS - JURISDICTION - GENERAL - Repeal of Costs Act 1867 - whether Court has jurisdiction to order taxation of solicitor’s bill to client PROCEDURE - COSTS - DEPARTING FROM THE GENERAL RULE - NATURE OF PROCEEDINGS - INCONCLUSIVE PROCEEDINGS - NEW TRIAL - whether costs of first trial ordered on appeal are owed before new trial concluded Costs Act 1867 (Qld) Legal Aid Queensland Act 1997 (Qld) s 31 Queensland Law Society Act 1952 (Qld) s 6ZA(1)(b), s 6ZC(2) s 48J, s 48K(1)(a) Trusts Act 1973 (Qld), s 102 Uniform Civil Procedure Rules, r 702 Ex p Patience; Makinson v The Minister (1940) 40 SR (NSW) 96, discussed Re Johnson & Weatherall (1888) 37 Ch D 433, followed Storer & Co v Johnson & Weatherall (1890) 15 App Cas 203, mentioned Woolf v Snipe (1933) 48 CLR 677, 678, applied
COUNSEL:	The appellants appeared on their own behalf K J McGhee for the respondent W J Markwell for Thompson & Royds Lawyers by leave of the Court
SOLICITORS:	The appellants appeared on their own behalf MacDonnells Solicitors (Brisbane) for the respondent