Perry v Killmier - [2014] QCA 64

SUPREME COURT OF QUEENSLAND

CITATION:

Perry v Killmier & Anor [2014] QCA 64

PARTIES:

SHANE JAMES PERRY
(appellant)
v
DWAYNE ARRON KILLMIER
(first respondent)
AAI LIMITED
ABN 48 005 297 807
(second respondent)

FILE NO/S:

Appeal No 10363 of 2013
SC No 459 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Townsville

DELIVERED ON:

4 April 2014

DELIVERED AT:

Brisbane

HEARING DATE:

25 March 2014

JUDGES:

Muir and Gotterson JJA and Applegarth J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   The appeal be allowed.

2.   The judgment given and the order made on 15 October 2013 be set aside.

3.   The second respondent pay the appellant’s costs of and incidental to the proceedings including the costs of this appeal on the indemnity basis.

4.   The second respondent pay the appellant $280,686.70.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – WHAT IS – GENERALLY – where the appellant’s partner was killed in a collision between a vehicle driven by her (the deceased) and a vehicle driven by the first respondent – where the appellant alleged in proceedings commenced by him that he and the deceased were living together as husband and wife at the time of her death – where the appellant claimed relief including $857,299 damages for loss of dependency resulting from the first respondent’s breach of a duty of care – where the primary judge found that the accident had been caused by the first respondent’s negligence and that the deceased’s negligence had contributed to the accident to the extent of 30 per cent – where the appellant failed on a dependency claim brought under s 18 of the Supreme Court Act 1995 (Qld) – where there was a delay between the primary judge’s judgment and publication of reasons – whether the primary judge erred in finding that the appellant was not a de facto spouse of the deceased – whether forensic advantage was lost in hearing the evidence due to the delay between the hearing and the delivery of judgment – whether the primary judge gave adequate reasons for judgment

Acts Interpretation Act 1954 (Qld), s 32DA
Civil Proceedings Act 2011 (Qld), s 63
Supreme Court Act 1995 (Qld), s 17, s 18

Chambers v Jobling (1986) 7 NSWLR 1, considered
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, considered
Griffith University v Tang (2005) 221 CLR 99; [2005] HCA 7, followed
KQ v HAE [2007] 2 Qd R 32; [2006] QCA 489, applied
NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470; [2005] HCA 77, considered
Robert Bax & Associates v Cavenham Pty Ltd [2013] 1 Qd R 476; [2012] QCA 177, considered
Wallace v Kam (2013) 87 ALJR 648; [2013] HCA 19, followed
Warren…

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 Perry v Killmier

Details

AGLC: Perry v Killmier [2014] QCA 64
Case: [2014] QCA 64
Decision Date: 4 April 2014

CaseChat Overview and Summary

The appeal in Perry v Killmier arose from a tragic incident in which the appellant's partner, the deceased, was killed in a car accident involving a vehicle driven by the first respondent. The appellant commenced proceedings seeking damages, including $857,299 for loss of dependency, claiming that he and the deceased were living together as husband and wife at the time of her death. The primary judge found that the first respondent's negligence caused the accident and that the deceased's negligence contributed to the accident by 30%. The appellant's claim for dependency damages under section 18 of the Supreme Court Act 1995 (Qld) was unsuccessful. The court was tasked with determining whether the primary judge erred in finding that the appellant was not a de facto spouse of the deceased, whether the delay between the hearing and the delivery of judgment resulted in a loss of forensic advantage, and whether the primary judge provided adequate reasons for the judgment.

The court examined the evidence and submissions to assess whether the primary judge correctly found that the appellant and the deceased were not in a de facto relationship. The court considered the nature of their relationship, the duration, and the level of financial interdependence, among other factors. The court also evaluated whether the delay in delivering the reasons affected the fairness of the trial or led to a loss of forensic advantage. Additionally, the court reviewed the primary judge's reasons to determine if they were adequate and sufficient to justify the judgment.

The appeal was allowed, and the original judgment and order were set aside. The court found that the primary judge erred in concluding that the appellant and the deceased were not in a de facto relationship, leading to the appellant's unsuccessful claim for dependency damages. The second respondent was ordered to pay the appellant's costs of the proceedings, including the costs of the appeal on an indemnity basis. Furthermore, the second respondent was required to pay the appellant $280,686.70.

Orders

Orders of the court

1. The appeal be allowed.

2. The judgment given and the order made on 15 October 2013 be set aside.

3. The second respondent pay the appellant’s costs of and incidental to the proceedings including the costs of this appeal on the indemnity basis.

4. The second respondent pay the appellant $280,686.70.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Perry v Killmier & Anor [2014] QCA 64
PARTIES:	SHANE JAMES PERRY (appellant) v DWAYNE ARRON KILLMIER (first respondent) AAI LIMITED ABN 48 005 297 807 (second respondent)
FILE NO/S:	Appeal No 10363 of 2013 SC No 459 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Townsville
DELIVERED ON:	4 April 2014
DELIVERED AT:	Brisbane
HEARING DATE:	25 March 2014
JUDGES:	Muir and Gotterson JJA and Applegarth J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The appeal be allowed. 2. The judgment given and the order made on 15 October 2013 be set aside. 3. The second respondent pay the appellant’s costs of and incidental to the proceedings including the costs of this appeal on the indemnity basis. 4. The second respondent pay the appellant $280,686.70.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – WHAT IS – GENERALLY – where the appellant’s partner was killed in a collision between a vehicle driven by her (the deceased) and a vehicle driven by the first respondent – where the appellant alleged in proceedings commenced by him that he and the deceased were living together as husband and wife at the time of her death – where the appellant claimed relief including $857,299 damages for loss of dependency resulting from the first respondent’s breach of a duty of care – where the primary judge found that the accident had been caused by the first respondent’s negligence and that the deceased’s negligence had contributed to the accident to the extent of 30 per cent – where the appellant failed on a dependency claim brought under s 18 of the Supreme Court Act 1995 (Qld) – where there was a delay between the primary judge’s judgment and publication of reasons – whether the primary judge erred in finding that the appellant was not a de facto spouse of the deceased – whether forensic advantage was lost in hearing the evidence due to the delay between the hearing and the delivery of judgment – whether the primary judge gave adequate reasons for judgment Acts Interpretation Act 1954 (Qld), s 32DA Civil Proceedings Act 2011 (Qld), s 63 Supreme Court Act 1995 (Qld), s 17, s 18 Chambers v Jobling (1986) 7 NSWLR 1, considered Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, considered Griffith University v Tang (2005) 221 CLR 99; [2005] HCA 7, followed KQ v HAE [2007] 2 Qd R 32; [2006] QCA 489, applied NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470; [2005] HCA 77, considered Robert Bax & Associates v Cavenham Pty Ltd [2013] 1 Qd R 476; [2012] QCA 177, considered Wallace v Kam (2013) 87 ALJR 648; [2013] HCA 19, followed Warren…