Milu v Smith - [2004] QSC 27

SUPREME COURT OF QUEENSLAND

File Nos S6077 of 2002
S952 of 2004
S1018 of 2004

MOYNIHAN J – REASONS FOR JUDGMENT

CITATION:

Milu v Smith & Ors [2004] QSC 027

Attorney-General and Minister for Justice v Martinovic

Chief Executive Department of Transport v Martinovic

PARTIES:

S6077 of 2002

Dan Milu

Applicant

v

W.J. Smith, Coroner

First Respondent

Chief Executive, Queensland Transport

Second Respondent

Attorney General for Queensland

Third Respondent

S952 of 2004

Attorney-General and Minister for Justice

Applicant

v

Carl Martinovic

Respondent

S1018 of 2004

Chief Executive Department of Transport

Applicant

v

Carl Martinovic

Respondent

FILE NO/S:

SC No 6077 of 2002

SC No 952 of 2004

SC No 1018 of 2004

DIVISION:

Trial Divison

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

Friday 27 February 2004

DELIVERED AT:

Brisbane

HEARING DATE:

7 November 2003, 18 December 2003, 10 February 2004

JUDGE:

Moynihan J

ORDER:

1. The respondent to applications SC952 of 2004 and SC1018 of 2004 pay the costs of the second and third respondents to SC 6077 of 2002 to be assessed on an indemnity basis.

2. No order as to costs in respect of the applicant in SC6077 of 2002.

CATCHWORDS:

PROCEDURE – COSTS – JURISDICTION – Persons not parties to proceedings – Barrister for party – Applicable principles

PROFESSIONS AND TRADES – LAWYERS – DUTIES AND LIABILITIES – To court – Presentation of plainly unarguable case

Legislation Cited

Judicial Review Act 1991

Uniform Civil Procedure Rules 1999

Cases Cited

Cairns Port Authority v Albietz [1995] 2 Qd R 470

Hinton v Mill [1991] 57 SASR 97

Leverick v Deputy Commissioner of Taxation (2000) 102 FCR 155

Medcalf v Mardell [2003] 1 AC 120

Myers v Elman [1940] AC 282

Steindl Nominees Pty Ltd v Laghaifar [2003] 2 Qd R 683

The Queen v Australian Broadcasting Tribunal;Ex parte Hardiman (1980) 144 CLR 13

Vakauta v Kelly [1989] 167 CLR 568

White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1998) 156 ALR 169

COUNSEL:

SC No 6077 of 2002

C Martinovic for the Applicant

RG Marsh for the First Respondent

SA McLeod for the Second Respondent

MJ Burns for the Third Respondent

SC 952 of 2004

MJ Burns for the Applicant

AJH Morris QC for the Respondent

SC 1018 of 2004

SA McLeod for the Applicant

AJH Morris QC for the Respondent

SOLICITORS:

O’Sullivans Lawyers for the Applicant in SC 6077 of 2002

Crown solicitor for First, Second and Third Respondents in SC 6077 of 2002 and for the Applicants in SC 952 of 2004 and SC 1018 of 2004

Terry Fisher & Co Solicitors for the Respondent in SC 952 of 2004 and SC 1018 of 2004

These reasons and orders dispose of costs in the original application for judicial review and in the subsequent applications bought by the second and third respondents in the review application for costs to be ordered against the respondent to their applications.

On 18 December 2003 I dismissed an application by Dan Milu (6077of 2002) for the…

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: [2004] QSC 27
Decision Date: Friday 27 February 2004

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Milu v Smith involved a dispute regarding the costs associated with legal proceedings. The respondents, who were not parties to the original proceedings, sought to recover costs incurred in relation to applications made in other cases. The primary issue before the court was whether the second and third respondents were entitled to be reimbursed for the costs they had incurred in presenting an unarguable case in court. The case also examined the principles applicable to the awarding of costs against a barrister for a party, specifically when the case presented was plainly unarguable.

The court considered whether the second and third respondents, who were not parties to the original proceedings, could recover their costs from the respondent in the initial case. It was acknowledged that the costs incurred by the second and third respondents were significant, and the court had to determine the appropriate basis for assessing these costs. The court held that the costs should be assessed on an indemnity basis, meaning the respondent would be liable for all costs incurred by the second and third respondents. The court emphasised that the principle of indemnity costs was applicable in cases where a party or their representative presents a plainly unarguable case to the court.

In its judgment, the court concluded that the respondent to the initial applications was liable for the costs incurred by the second and third respondents. The court found that the case presented by the second and third respondents was plainly unarguable, justifying the award of indemnity costs. The court did not make any order regarding the costs of the applicant in the initial case, as the focus was on the costs incurred by the respondents. The final orders required the respondent to pay the costs of the second and third respondents on an indemnity basis, with no order made in respect of the applicant's costs.

Orders

Orders of the court

1. The respondent to applications SC952 of 2004 and SC1018 of 2004 pay the costs of the second and third respondents to SC 6077 of 2002 to be assessed on an indemnity basis.

2. No order as to costs in respect of the applicant in SC6077 of 2002.

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:	Milu v Smith & Ors [2004] QSC 027 Attorney-General and Minister for Justice v Martinovic Chief Executive Department of Transport v Martinovic
PARTIES:	S6077 of 2002 Dan Milu Applicant v W.J. Smith, Coroner First Respondent Chief Executive, Queensland Transport Second Respondent Attorney General for Queensland Third Respondent S952 of 2004 Attorney-General and Minister for Justice Applicant v Carl Martinovic Respondent S1018 of 2004 Chief Executive Department of Transport Applicant v Carl Martinovic Respondent
FILE NO/S:	SC No 6077 of 2002 SC No 952 of 2004 SC No 1018 of 2004
DIVISION:	Trial Divison
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court
DELIVERED ON:	Friday 27 February 2004
DELIVERED AT:	Brisbane
HEARING DATE:	7 November 2003, 18 December 2003, 10 February 2004
JUDGE:	Moynihan J
ORDER:	1. The respondent to applications SC952 of 2004 and SC1018 of 2004 pay the costs of the second and third respondents to SC 6077 of 2002 to be assessed on an indemnity basis. 2. No order as to costs in respect of the applicant in SC6077 of 2002.
CATCHWORDS:	PROCEDURE – COSTS – JURISDICTION – Persons not parties to proceedings – Barrister for party – Applicable principles PROFESSIONS AND TRADES – LAWYERS – DUTIES AND LIABILITIES – To court – Presentation of plainly unarguable case Legislation Cited Judicial Review Act 1991 Uniform Civil Procedure Rules 1999 Cases Cited Cairns Port Authority v Albietz [1995] 2 Qd R 470 Hinton v Mill [1991] 57 SASR 97 Leverick v Deputy Commissioner of Taxation (2000) 102 FCR 155 Medcalf v Mardell [2003] 1 AC 120 Myers v Elman [1940] AC 282 Steindl Nominees Pty Ltd v Laghaifar [2003] 2 Qd R 683 The Queen v Australian Broadcasting Tribunal;Ex parte Hardiman (1980) 144 CLR 13 Vakauta v Kelly [1989] 167 CLR 568 White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1998) 156 ALR 169
COUNSEL:	SC No 6077 of 2002 C Martinovic for the Applicant RG Marsh for the First Respondent SA McLeod for the Second Respondent MJ Burns for the Third Respondent SC 952 of 2004 MJ Burns for the Applicant AJH Morris QC for the Respondent SC 1018 of 2004 SA McLeod for the Applicant AJH Morris QC for the Respondent
SOLICITORS:	O’Sullivans Lawyers for the Applicant in SC 6077 of 2002 Crown solicitor for First, Second and Third Respondents in SC 6077 of 2002 and for the Applicants in SC 952 of 2004 and SC 1018 of 2004 Terry Fisher & Co Solicitors for the Respondent in SC 952 of 2004 and SC 1018 of 2004