Parry v Kennedy - [2014] QCA 239

SUPREME COURT OF QUEENSLAND

CITATION:

Parry v Kennedy & Anor [2014] QCA 239

PARTIES:

ALAN CHARLES PARRY
(appellant)
v
BRUCE JAMES KENNEDY
(respondent)
BARBARA MARJORY HUNT
(respondent)

FILE NO/S:

Appeal No 3715 of 2014
SC No 1268 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

24 September 2014

DELIVERED AT:

Brisbane

HEARING DATE:

24 September 2014

JUDGES:

Fraser JA and Applegarth and Boddice JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Appeal dismissed.

2. The appellant pay the respondents’ costs of the appeal to be assessed on the indemnity basis.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – EVIDENCE – where the appellant was served with a subpoena requiring him to give evidence at a trial – where the appellant applied under r 417 of the UCPR for an order that the respondents pay his costs in complying with that subpoena, claiming $45,000 – where the primary judge awarded the appellant $800 – where the appellant argues his claim for higher costs was justified by him seeking legal advice about legal professional privilege – whether the primary judge erred in finding the reasonable costs in complying with subpoena amounted to $800

PROCEDURE – COSTS – APPEAL AS TO COSTS – DISCRETION – where the appellant claimed $45,000 in his application under r 417 of the UCPR – where the primary judge awarded him $800, and ordered he pay the respondents’ costs of the application – where the appellant argued his application was successful and so he should not have been ordered to pay the respondents’ costs – whether the primary judge erred in exercising her discretion as to costs

Uniform Civil Procedures Rules 1999 (Qld), r 417

COUNSEL:

J W Lee with D F Galton for the appellant
T W Quinn for the respondents

SOLICITORS:

Griffiths Parry Lawyers for the appellant
Broadley Rees Hogan Lawyers for the respondents

FRASER JA: The appellant applied in the trial division, pursuant to r 417 of the Uniform Civil Procedure Rules 1999 (Qld), for an order that the respondents pay the appellant “$45,000 (or as otherwise assessed)” as reimbursement of loss and expense incurred by the appellant in complying with a subpoena served on 18 December 2013 requiring the appellant to give evidence at a trial set down for 3 March 2014. The application was heard on 17 March 2014. After hearing argument, the primary judge gave reasons in which her Honour concluded that the appellant’s reasonable costs of complying with the subpoena amounted to $800.00. The primary judge then invited submissions about costs before making formal orders. On 24 March 2014, the primary judge gave reasons for her Honour’s conclusion that the appellant should be ordered to pay the respondents’ costs of the application. Her Honour ordered that the respondents pay the appellant the sum of $800 and that…

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 Parry v Kennedy

Details

AGLC: Parry v Kennedy [2014] QCA 239
Case: [2014] QCA 239
Decision Date: 24 September 2014

CaseChat Overview and Summary

In the case of Parry v Kennedy, the appellant sought to challenge the amount of costs awarded to him under r 417 of the Uniform Civil Procedure Rules (UCPR) in Queensland. The appellant was served with a subpoena to give evidence at a trial, and he subsequently applied for an order that the respondents pay his costs in complying with that subpoena. He claimed a total of $45,000. The primary judge, however, awarded the appellant only $800 and ordered that he pay the respondents' costs of the application. The appellant contested the adequacy of the award and the order regarding costs, arguing that his application was successful and therefore he should not have been required to pay the respondents' costs.

The court was required to determine whether the primary judge's assessment of the reasonable costs in complying with the subpoena was correct and whether the judge exercised her discretion appropriately regarding the costs of the application. The appellant contended that his claim for higher costs was justified by the need to seek legal advice about legal professional privilege, which was not considered by the primary judge. The court needed to assess whether these factors warranted a higher award of costs and if the primary judge's exercise of discretion was erroneous.

The court found that the primary judge did not err in assessing the reasonable costs for complying with the subpoena, considering the nature and complexity of the legal advice required. The judge correctly exercised her discretion by awarding $800 and ordering the appellant to pay the respondents' costs of the application, given the appellant's unsuccessful attempt to justify a higher award. The appeal was dismissed, and the appellant was ordered to pay the respondents' costs of the appeal, to be assessed on the indemnity basis.

Orders

Orders of the court

1. Appeal dismissed.

2. The appellant pay the respondents’ costs of the appeal to be assessed on the indemnity basis.

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:	Parry v Kennedy & Anor [2014] QCA 239
PARTIES:	ALAN CHARLES PARRY (appellant) v BRUCE JAMES KENNEDY (respondent) BARBARA MARJORY HUNT (respondent)
FILE NO/S:	Appeal No 3715 of 2014 SC No 1268 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED EX TEMPORE ON:	24 September 2014
DELIVERED AT:	Brisbane
HEARING DATE:	24 September 2014
JUDGES:	Fraser JA and Applegarth and Boddice JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal dismissed. 2. The appellant pay the respondents’ costs of the appeal to be assessed on the indemnity basis.
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – EVIDENCE – where the appellant was served with a subpoena requiring him to give evidence at a trial – where the appellant applied under r 417 of the UCPR for an order that the respondents pay his costs in complying with that subpoena, claiming $45,000 – where the primary judge awarded the appellant $800 – where the appellant argues his claim for higher costs was justified by him seeking legal advice about legal professional privilege – whether the primary judge erred in finding the reasonable costs in complying with subpoena amounted to $800 PROCEDURE – COSTS – APPEAL AS TO COSTS – DISCRETION – where the appellant claimed $45,000 in his application under r 417 of the UCPR – where the primary judge awarded him $800, and ordered he pay the respondents’ costs of the application – where the appellant argued his application was successful and so he should not have been ordered to pay the respondents’ costs – whether the primary judge erred in exercising her discretion as to costs Uniform Civil Procedures Rules 1999 (Qld), r 417
COUNSEL:	J W Lee with D F Galton for the appellant T W Quinn for the respondents
SOLICITORS:	Griffiths Parry Lawyers for the appellant Broadley Rees Hogan Lawyers for the respondents