Mitchell v Pacific Dawn P/L

[2003] QCA 573

SUPREME COURT OF QUEENSLAND

CITATION:

Mitchell v Pacific Dawn P/L [2003] QCA 573

PARTIES:

BRUCE JOSEPH MITCHELL
(plaintiff/respondent)
v

PACIFIC DAWN PTY LTD ACN 070 358 280
(defendant/appellant)

FILE NO/S:

Appeal No 3844 of 2003
Appeal No 5854 of 2003
SC No 3872 of 2001

DIVISION:

Court of Appeal

PROCEEDINGS:

General Civil Appeal – Further Order

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

19 December 2003

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

McPherson JA and Mackenzie and Wilson JJ
Judgment of the Court

FURTHER ORDER:

Appellant’s application to vary orders made by this court on 28 November 2003 is dismissed with costs

CATCHWORDS:

PROCEDURE – JUDGMENTS  AND ORDERS – AMENDING, VARYING AND SETTING ASIDE – GENERAL RULES – orders made by trial judge not challenged on appeal – whether correct to challenge after judgment given in appeal – cross-appeal rendered unnecessary by result of appeal – whether correct to dismiss cross-appeal with no order as to costs

COUNSEL:

D B Fraser QC, with S R Lumb, for the appellant
J C Bell QC, with P J Dunning, for the respondent

SOLICITORS:

Hogan & Company for the appellant
Gall Standfield & Smith for the respondent

1. : THE COURTJudgment in these appeals by the appellant defendant was delivered on 28 November 2003. Four orders were made. The first allowed appeal CA 3844 of 2003 and disposed of the costs of that appeal. The second order was that the determination at first instance on 4 April 2003 of question 3(b) be set aside and that that question be re-determined. Orders 3 and 4 made by the Court of Appeal dealt with costs and with the separate appeal CA 5854 of 2003 against the costs orders below. The parties were given leave to deliver written submissions with respect to those orders.

1. The defendant has presented written submissions in which it seeks to vary the orders made by this Court on 28 November 2003. It is sought to add a further order 6 concerning question 3(a) determined at the hearing on 4 April 2003. However, there was no appeal by either party against the determination of that question. As appears from paragraph 8 of the reasons in the first judgment in the Court of Appeal, question 3(a) has never been before this Court and it is not within its power to vary the determination on that question of the judge at first instance either in the manner now suggested or at all. Indeed, it is surprising that the appellant defendant should for the first time now be attempting to vary that order, which it has never previously challenged in any respect or at any time. The application for an order in the terms of paragraph 6 of the appellant’s further submission is therefore rejected.

1. As to orders 3 and 4 in the Court of Appeal judgment of 28 November, it is now sought to make them the subject of two further orders numbered 4 and 5 in the appellant defendant’s most recent written submissions. Instead of dismissing the appeal (CA No. 5854 of 2003) as was proposed in order 4 of the Court of Appeal judgment, the following orders are sought:

“4. Order that the appeal numbered CA 5854 of 2003 be allowed and that the respondent pay the appellant’s costs of and incidental to the question designated 3(a) in the order of the Supreme Court made on 4 April 2003 and of appeal numbered CA 5854 of 2003 to be assessed on the standard basis.

5. Order that the respondent be granted an indemnity certificate under s 15 of the Appeal Costs Fund Act 1973 in respect of that appeal”.

1. We see no reason to make the orders sought. It is true that the defendant succeeded at first instance on question 3(a); but there is equally no doubt that the major issue of the fact and law at the hearing at first instance was question 3(b), and it has yet to be determined at the future hearing envisaged in order 2 of the Court of Appeal judgment dated 28 November. Costs of determining that question on that occasion will be disposed of at that hearing. The appellant’s very success on the appeal rendered the separate appeal CA No 5854 unnecessary, and it was right to dismiss it, but without any order as to the costs of either side.

1. The result is that we see no reason for altering the orders made by this Court on 28 November 2003. The appellant’s application to vary those orders is therefore dismissed with costs.