Paterson-Walls v FAI General Insurance Co Ltd

[1992] QCA 416

IN THE COURT OF APPEAL

[1992] QCA 416

SUPREME COURT OF QUEENSLAND

C.A. No.161 of 1992

BETWEEN:

CARLOTTA OUGUSTA PATERSON-WALLS

(Plaintiff) Respondent

- and -

FAI GENERAL INSURANCE COMPANY LIMITED

(Defendant) Appellant

REASONS FOR JUDGMENT OF THE COURT

Delivered the first day of December, 1992

This is an appeal from part of a judgment delivered in the District Court on 9 July 1992, in the following terms:

"I GIVE JUDGMENT for the Plaintiff in an amount of one hundred and eighty-six thousand, six hundred and forty- nine dollars and eighty-two cents ($186,649.82).

I certify for two Counsel.

I order that the Defendant shall pay the Plaintiff's taxed costs on a solicitor/client basis, together with reserved costs if any.

I order leave to appeal under section 9 of the Judicature Act be drawn allowing two Counsel for trial."

The Notice of Appeal, which was filed on 24 July 1992, sought the reduction of the damages awarded the respondent, that two counsel not be allowed pursuant to Item 85 of the District Court Scale of Fees and Costs and that the respondent be ordered to pay to the appellant its taxed costs of the appeal. However, the appeal against damages was abandoned, and the appeal was limited to the trial judge's certification for two counsel. The ground of appeal stated in the notice with respect to that issue was as follows:

" ...

3. That the learned Judge wrongly exercised his discretion because he failed to take any sufficient account of the factors that liability was not an issue, that the entire trial took less than 3 hours, that the Plaintiff called only 4 witnesses, that the Defendant called no witnesses and that was therefore no cross- examination required by the Plaintiff's Counsel, that there were no complex issues of law or fact and that the volume of material handled was not great. Having regard to such factors, the learned Judge ought to have refused to allow two Counsel."

The argument before this Court assumed that the trial judge had power to act as he did, and concentrated on whether he had properly exercised his discretion. However, it is necessary first to identify the basis upon which the trial judge acted.

In Colbert v. Beard (1992) 2 Qd.R. 67, Thomas J. said

at p.68:

"An order directing the payment of costs by one party to another is a final judgment. It is probably in the original jurisdiction of the District Court although one searches the Act in vain for a section conferring such jurisdiction or power. Some statutory source is

necessary because the right to costs was unknown to the common law (Re Birkman (1860) 1 SCR 14,15). The power to make rules of court (given by s.101 of the Act) does not expressly confer a power in relation to costs, but such a power may be inferred from the power to make such rules `as may be deemed necessary or convenient for regulating the procedure and practise of District Courts and for the purpose of giving full affect to this Act ...' Furthermore, sections 46, 80 and 84 all imply that the practice of the Court will include power to award costs. By this oblique path one comes to r.363 of the District Court Rules."

(One might add s.77 as another section of the District Court Act which implies that that Court has power to award costs, which may also be supported by r.4 of the District Court Rules).

Rule 363 of those rules is in the following terms:
"363. Except where herein otherwise provided, the costs
of any action or proceeding shall be paid by or
apportioned between the parties in such manner as the
Judge directs, and in default of a special direction
shall abide the event; and the costs may be recovered
in like manner as a debt adjudged by the Court to be
paid can be covered."

Rule 363 is in Part 35 of the District Court Rules which also contain rules 364 and 365 which respectively provide:

"364. Except as hereinafter provided all costs and charges as between the parties shall be taxed by the Registrar or Taxing Officer of the Court in which they are incurred, but the taxation may be reviewed by the Judge on the application of either party; and no costs or charges shall be allowed on taxation which are not sanctioned by the scale of costs then in force.

365. The fees to be allowed to barristers and solicitors practising in a District Court for appearing or acting on behalf of a party to an action or other proceedings, and the expenses to be paid to witnesses, shall be according to the Schedule of Scale of Fees and Costs."

It is desirable also to notice rule 101 of the District Court Rules which provides:

"101. In any proceedings, the Court or a Judge may at any time, upon application or of its or his own motion, give such directions as it or he thinks proper."

The Schedule of Scale of Fees and Costs referred to in rule 365 provides the amounts recoverable for various steps under a number of different headings. It is necessary to set out part of the schedule, namely the following:

" FEES ALLOWABLE TO COUNSEL ON TAXATION WHERE -

(a)  In the case of plaintiff's party and party costs - the amount recovered does not exceed $50,000;

(b)  In the case of the defendant's cost and plaintiff's costs as between solicitor and client - the amount claimed does not exceed $50,000.

(NOTE - No fee to Counsel is to be allowed unless
vouched by Counsel's signature).
The Registrar or Taxing Officer may allow such
higher or lower amount as the Registrar or Taxing
Officer thinks proper in all the circumstances.
...

83.  (a) On trial or hearing .................. 959.00 ...

84. Refresher fee ............................. 639.00

85.  Where more than one Counsel is employed for a party and the Judge certifies that such employment was reasonably necessary, having regard to the difficulty or importance of the case the fee of the senior of the Counsel is to be a fee not exceeding the appropriate fee for the relevant item in this Schedule increased by 50%, and the fee of the other Counsel is not to exceed two- thirds of the fee allowed to the senior Counsel.

...

FEES TO COUNSEL IN ANY OTHER ACTION WITHIN THE JURISDICTION OF THE COURT ARE TO BE AS THE REGISTRAR OR TAXING OFFICER THINKS PROPER IN ALL THE CIRCUMSTANCES.

... ."

In Colbert v. Beard, supra, it was considered that there was an appeal as of right to this Court from a decision of the District Court with respect to costs, irrespective of the amount at stake. Thomas J. said that that seemed to be the plain effect of s.92 of the District Courts Act 1967, Ryan J. seems to have assumed that that was so and MacKenzie J. agreed with the judgments of both other members of the Court. In the present matter, the respondents did not challenge the appellant's right to prosecute an appeal against only so much of the trial judge's judgment as certified for two counsel. However, there seems to be a number of difficulties involved in the course taken by the trial judge.

The relevant parts of s.92 of the District Court Act

are sub-s.1 and 2 which respectively provide:

"92. (1) Any party who is dissatisfied with the final judgment of a District Court, whether in its original or appellate jurisdiction -

(a)  in an action or matter in which the sum sued for exceeds $10,000;

(b)  in an action for the recovery of possession of land of which the value exceeds $10,000;

(c)  in proceedings in interpleader in which the amount claimed or the value of the goods in question exceeds $10,000;

(d) in an action or matter which before the commencement of the District Courts Act and Other Acts Amendment Act 1989 might have been commenced only in the Supreme Court unless the parties agreed to it being heard and determined in another jurisdiction,

may appeal to the Court of Appeal.
(2) Any party who is dissatisfied with a judgment
of a District Court other than one hereinbefore
mentioned in this section may by leave of the
Court of Appeal or a Judge of Appeal appeal to the
Court of Appeal.

Such leave may be granted upon such terms as to security for costs or otherwise as the Court of Appeal or a Judge of Appeal may impose but such leave shall not be granted unless some important question of law or justice is involved."

In Colbert v. Beard, supra, the Court was concerned with an order which it was satisfied fell within sub-s.1 of s.92. However, the relevant part of the trial judge's order in the present case, namely certifying for two Counsel, is not obviously a final judgment or part of a final judgment in any relevant sense. Accordingly, it is not clear that an appeal can be brought to this Court without its leave or the leave of a Judge of Appeal. The leave purportedly granted by the trial judge pursuant to s.9 of the Judicature Act does not satisfy the requirements of sub-s.92(2) of the District Court Act if it applies.

Further, the Schedule of Scale of Fees and Costs to the District Court Rules may not have authorized the trial judge to certify for two counsel in the present case, in which the amount claimed and recovered exceeded $50,000. In those circumstances, as the final extract from the Schedule of Scale of Fees and Costs quoted above makes plain, the fees for counsel are to be such as the Registrar or Taxing Officer thinks proper in all the circumstances. Perhaps r.101 or some other general provision provided a basis for the certificate given by the trial judge, but such a construction seems unlikely when specific provision concerning the grant of a certificate in different circumstances is expressly provided for in the Schedule to the Rules.

Against this background of difficulties, it is appropriate to turn to the trial judge's reasons for certifying for two counsel. He said:

"This was a short, but still complex, matter involving much preparation and there was an obvious requirement that this badly injured and affected woman have her case presented with the utmost skill and care. Furthermore, the award ultimately given was near the top of the range for this Court."

In fact, the action was a claim for damages for personal injuries, with liability admitted and some complexities or potential complexities attendant upon the assessment of damages, which was further complicated by the use both parties had made of the District Court Rules with respect to payment in and offers to settle so that the respondent was under an appreciable risk that her success in obtaining an award of damages (which was inevitable) would not necessarily ensure that she received her costs or would not be liable for the appellant's costs. Nonetheless, when asked, senior counsel for the respondent accepted that a competent senior counsel could have conducted the proceedings without the assistance of a junior.

In all the circumstances, the certification should not be permitted to stand. We propose to say no more concerning the merits of the issue whether two counsel should be allowed, but leave that to the Taxing Officer's discretion.

The appeal will be allowed and the judgment below varied to delete the certification for two counsel. There will be no order concerning the costs of the appeal.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 161 of 1992

BETWEEN:

CARLOTTA OUGUSTA PATERSON-WALLS

(Plaintiff) Respondent

- and -

FAI GENERAL INSURANCE COMPANY LIMITED

(Defendant) Appellant

The President
Mr Justice McPherson

Mr Justice Derrington

Judgment of the Court delivered on the first

day of December, 1992

APPEAL ALLOWED.
JUDGMENT BELOW VARIED TO DELETE THE
CERTIFICATION FOR TWO COUNSEL.
NO ORDER CONCERNING THE COSTS OF THE
APPEAL.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 161 of 1992

Before the Court of Appeal

The President
Mr Justice McPherson

Mr Justice Derrington

BETWEEN:

CARLOTTA OUGUSTA PATERSON-WALLS

(Plaintiff) Respondent

- and -

FAI GENERAL INSURANCE COMPANY LIMITED

(Defendant) Appellant

REASONS FOR JUDGMENT OF THE COURT

Delivered the first day of December, 1992

MINUTE OF ORDER:	Appeal allowed. Judgment below varied to delete the certification for two counsel. No order concerning the costs of the appeal.
CATCHWORDS:	Legal practitioners. Costs - two counsel. Appeal from certification for two counsel - whether appeal can be brought without leave as not a final judgment - whether judge had power to certify for two counsel - whether certification ought be deleted.
Counsel:	Mr J. Griffin Q.C. for the appellant
Mr Clifford Q.C. with him Mr T.D.O.J. North for the respondent
Solicitors:	Messrs. Baker Johnson for the appellant Messrs. Conroy and Conroy for the respondent

Hearing Date: 20th November, 1992