Palmer v Finnigan - [2010] QSC 86

SUPREME COURT OF QUEENSLAND

CITATION:

Palmer & Anor v Finnigan & Ors [2010] QSC 86

PARTIES:

BRIAN GRAHAM PALMER
(first plaintiff)

GAYE LESLEY PALMER

(second plaintiff)
v
RUSSELL JAMES FINNIGAN
(first defendant)

JESSICA FINNIGAN

(second defendant)

JOHN GORDON HEMPSTALK

(first third party)

CHRISTOPHER DAVID ENGLISH

(second third party

GOLD COAST CITY COUNCIL

(third third party)

FILE NO/S:

6033 of 2004

DIVISION:

Trial Division

PROCEEDING:

Cost application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

25 March 2010

DELIVERED AT:

Brisbane

HEARING DATE:

Written submissions

JUDGE:

A Lyons J

ORDER:

1.   Order that the first plaintiff pay the first and second defendants’ costs of and incidental to the proceedings on the standard basis to be assessed.

2.   Order that the first and second defendants pay the second third party costs of and incidental to the proceeding up to 27 October 2009 on the standard basis to be assessed.

3.   Order that the first and second defendants pay thesecond third party’s costs of and incidental to the proceeding from 28 October 2009 on the indemnity basis to be assessed.

4.   Order that the first and second defendants pay the third third party costs on the standard basis to be assessed.

CATCHWORDS:

PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – CO-DEFENDANTS – THIRD PARTIES – where plaintiffs claimed damages for personal injuries after falling from a balcony after defendants’ railing gave way – where defendants joined third parties as contributors – where plaintiffs failed in joining third parties as defendants – where plaintiffs claim for damages was dismissed – whether plaintiff should pay costs of the defendants – whether defendants should pay costs of the third parties.   whether third parties’ costs should be the subject of a ‘Sanderson’ or ‘Bullock Order’..

Personal Injuries Proceedings Act 2002 (Qld)
Uniform Civil Procedure Rules 1999 (Qld)

Palmer & Anor v Finnigan & Ors [2009] QSC 42.
Colgate Palmolive v Cussons 46 FCR 225.
Edington v Clark [1964] 1 QB 367.
Steele-Smith and Ors v Liberty Financial Pty Ltd and Anor (no2) [2005] NSWSC 487.
Calderbank v Calderbank [1975] 3 All ER 333.
Lombard Insurance Co (Australia) Ltd v Pastro (1994) 175 LSJS 448.
Misfud v ICTPty Ltd (1997) 7 Tas R 148.
Yamacoe P/L v Michel Survey Group P/L & Anor [2002] QSC 393.

COUNSEL:

J Webb for the plaintiffs
D Savage SC with P Corkery and A Salzmann for the first and second defendants
P Woods with G Hampson for the second third party

K Howe for the third third party

SOLICITORS:

Robins Watson & Co for the plaintiff
Deacons Lawyers for the first and second defendants
Hynes Lawyers for the second third party

Michael Sing Lawyers for the third third party

A LYONS J:

The first plaintiff was injured on 10 July 2001 in a fall from a balcony at the home of the first and second defendants when a railing gave way as he was working to dye carpets at the defendants’…

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 Palmer v Finnigan

Details

AGLC: Palmer v Finnigan [2010] QSC 86
Case: [2010] QSC 86
Decision Date: 25 March 2010

CaseChat Overview and Summary

The plaintiffs in the case sought damages for personal injuries sustained from falling from a balcony after a railing gave way. They sued the defendants, who were joined by third parties as contributors. The plaintiffs sought to join the third parties as defendants but were unsuccessful in their application. The plaintiffs' claim for damages was ultimately dismissed. The matter then proceeded to determine the costs incurred by each party in the proceedings.

The central legal issues were whether the plaintiffs should bear the costs of the defendants and whether the defendants should bear the costs of the third parties. Additionally, the court had to determine if the third parties' costs were subject to a 'Sanderson' or 'Bullock Order'. The 'Sanderson Order' refers to a situation where a plaintiff fails in an application to join a third party as a defendant, and the third party's costs become the subject of a costs order. A 'Bullock Order' applies when a plaintiff's claim against a defendant is dismissed, and the defendant's costs are ordered to be paid by the plaintiff.

The court held that the plaintiffs should pay the defendants' costs of and incidental to the proceedings on the standard basis, to be assessed. Regarding the third parties, the court ruled that the defendants should bear the costs of the second third party up until a specific date on the standard basis, and from that date onwards on the indemnity basis. The court also ordered the defendants to pay the costs of the third third party on the standard basis. These orders reflect the outcomes of the legal issues presented in the case.

The final orders of the court were: the first plaintiff must pay the first and second defendants' costs of and incidental to the proceedings on the standard basis to be assessed; the first and second defendants must pay the second third party's costs of and incidental to the proceeding up to a certain date on the standard basis to be assessed, and from that date onwards on the indemnity basis; and the first and second defendants must also pay the third third party's costs on the standard basis to be assessed.

Orders

Orders of the court

1. Order that the first plaintiff pay the first and second defendants’ costs of and incidental to the proceedings on the standard basis to be assessed.

2. Order that the first and second defendants pay the second third party costs of and incidental to the proceeding up to 27 October 2009 on the standard basis to be assessed.

3. Order that the first and second defendants pay thesecond third party’s costs of and incidental to the proceeding from 28 October 2009 on the indemnity basis to be assessed.

4. Order that the first and second defendants pay the third third party costs on the standard basis 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:	Palmer & Anor v Finnigan & Ors [2010] QSC 86
PARTIES:	BRIAN GRAHAM PALMER (first plaintiff) GAYE LESLEY PALMER (second plaintiff) v RUSSELL JAMES FINNIGAN (first defendant) JESSICA FINNIGAN (second defendant) JOHN GORDON HEMPSTALK (first third party) CHRISTOPHER DAVID ENGLISH (second third party GOLD COAST CITY COUNCIL (third third party)
FILE NO/S:	6033 of 2004
DIVISION:	Trial Division
PROCEEDING:	Cost application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	25 March 2010
DELIVERED AT:	Brisbane
HEARING DATE:	Written submissions
JUDGE:	A Lyons J
ORDER:	1. Order that the first plaintiff pay the first and second defendants’ costs of and incidental to the proceedings on the standard basis to be assessed. 2. Order that the first and second defendants pay the second third party costs of and incidental to the proceeding up to 27 October 2009 on the standard basis to be assessed. 3. Order that the first and second defendants pay thesecond third party’s costs of and incidental to the proceeding from 28 October 2009 on the indemnity basis to be assessed. 4. Order that the first and second defendants pay the third third party costs on the standard basis to be assessed.
CATCHWORDS:	PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – CO-DEFENDANTS – THIRD PARTIES – where plaintiffs claimed damages for personal injuries after falling from a balcony after defendants’ railing gave way – where defendants joined third parties as contributors – where plaintiffs failed in joining third parties as defendants – where plaintiffs claim for damages was dismissed – whether plaintiff should pay costs of the defendants – whether defendants should pay costs of the third parties. whether third parties’ costs should be the subject of a ‘Sanderson’ or ‘Bullock Order’.. Personal Injuries Proceedings Act 2002 (Qld) Uniform Civil Procedure Rules 1999 (Qld) Palmer & Anor v Finnigan & Ors [2009] QSC 42. Colgate Palmolive v Cussons 46 FCR 225. Edington v Clark [1964] 1 QB 367. Steele-Smith and Ors v Liberty Financial Pty Ltd and Anor (no2) [2005] NSWSC 487. Calderbank v Calderbank [1975] 3 All ER 333. Lombard Insurance Co (Australia) Ltd v Pastro (1994) 175 LSJS 448. Misfud v ICTPty Ltd (1997) 7 Tas R 148. Yamacoe P/L v Michel Survey Group P/L & Anor [2002] QSC 393.
COUNSEL:	J Webb for the plaintiffs D Savage SC with P Corkery and A Salzmann for the first and second defendants P Woods with G Hampson for the second third party K Howe for the third third party
SOLICITORS:	Robins Watson & Co for the plaintiff Deacons Lawyers for the first and second defendants Hynes Lawyers for the second third party Michael Sing Lawyers for the third third party