Reitano v Shearer - [2015] QCA 37

SUPREME COURT OF QUEENSLAND

CITATION:

Reitano v Shearer & Anor [2015] QCA 37

PARTIES:

MONICA-LEIGH REITANO
(appellant)
v
BENJAMIN JOHN SHEARER
(first respondent)
RACQ INSURANCE LIMITED
ABN 50 009 704 152
(second respondent)

FILE NO/S:

Appeal No 3518 of 2014
SC No 52 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal – Further Orders

ORIGINATING COURT:

Supreme Court at Mackay

DELIVERED ON:

13 March 2015

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Holmes, Fraser and Philippides JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. The appellant is to pay the respondents’ costs thrown away by the abandonment of grounds 1, 3(c), 4, 5, 7(a) and (b), 8, 9(a), (b), (e) - (g) and 10 – 14 of the notice of appeal.

2. The respondents are otherwise to pay the appellant’s costs of the appeal.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where the appellant successfully appealed against the quantum of judgment in a personal injuries action – where the awards for general damages and future special damages were increased on appeal but the court did not interfere with the trial judge’s determinations in relation to future economic loss and past and future gratuitous services – whether the respondents should pay the appellant’s costs of the appeal

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where the appellant successfully appealed against the judgment in a personal injuries action – where the appellant abandoned several grounds of appeal on the morning of the appeal – whether the appellant should pay the respondents’ costs thrown away

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – APPEAL COSTS FUND – POWER TO GRANT INDEMNITY CERTIFICATE – where the appellant successfully appealed against the judgment in a personal injuries action – where the respondents applied for an indemnity certificate pursuant to s 15(1) of the Appeal Costs Fund Act 1973 (Qld) – where the respondents argued that they had not caused or contributed to error by the trial judge – whether the appeal succeeded “on a question of law” within the meaning of s 15(1) – whether the Court should grant an indemnity certificate

Appeal Costs Fund Act 1973 (Qld), s 15(1)

Allianz Australia Insurance Ltd v McCarthy [2012] QCA 312, cited
Allianz Australia Insurance Ltd v McCarthy [2013] 1 Qd R 503; [2012] QCA 331, cited
R v Moti[2010] QCA 241, cited
Vella v Larson [1982] Qd R 298, cited

COUNSEL:

No appearance by the appellant, the appellant’s submissions were heard on the papers
No appearance by the respondents, the respondents’ submissions were heard on the papers

SOLICITORS:

Eureka Legal for the appellant
Cooper Grace Ward for the respondents

HOLMES JA: The appellant seeks the costs of an appeal in which she succeeded in having the judgment in a personal injuries action set aside, and a…

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 Reitano v Shearer

Details

AGLC: Reitano v Shearer [2015] QCA 37
Case: [2015] QCA 37
Decision Date: 13 March 2015

CaseChat Overview and Summary

The appeal in Reitano v Shearer concerned a successful appeal against the quantum of judgment in a personal injuries action. The appellant sought to increase the awards for general damages and future special damages, while the respondents defended the original judgments. The appeal was heard in the Queensland Court of Appeal.

The legal issues before the court included whether the respondents should bear the costs of the appeal and whether the appellant should pay the respondents' costs due to the abandonment of several grounds of appeal. Additionally, the court considered whether the respondents were entitled to an indemnity certificate under the Appeal Costs Fund Act 1973 (Qld), arguing that they had not contributed to any errors made by the trial judge.

The court found that the appeal succeeded on a question of law, as the quantum of the awards for general damages and future special damages was increased. However, the court did not interfere with the trial judge's determinations regarding future economic loss and past and future gratuitous services. The appellant was ordered to pay the respondents' costs thrown away by the abandonment of several grounds of appeal, while the respondents were to pay the appellant's costs for the rest of the appeal. The court refused the respondents' application for an indemnity certificate, as the appeal succeeded on a question of law.

The orders of the court mandated that the appellant pay the respondents' costs thrown away by the abandonment of certain grounds of appeal, and that the respondents pay the appellant's costs of the appeal, except for the costs thrown away. Additionally, the court denied the respondents' application for an indemnity certificate under the Appeal Costs Fund Act 1973 (Qld).

Orders

Orders of the court

1. The appellant is to pay the respondents’ costs thrown away by the abandonment of grounds 1, 3(c), 4, 5, 7(a) and (b), 8, 9(a), (b), (e) - (g) and 10 – 14 of the notice of appeal.

2. The respondents are otherwise to pay the appellant’s costs of the appeal.

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:	Reitano v Shearer & Anor [2015] QCA 37
PARTIES:	MONICA-LEIGH REITANO (appellant) v BENJAMIN JOHN SHEARER (first respondent) RACQ INSURANCE LIMITED ABN 50 009 704 152 (second respondent)
FILE NO/S:	Appeal No 3518 of 2014 SC No 52 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal – Further Orders
ORIGINATING COURT:	Supreme Court at Mackay
DELIVERED ON:	13 March 2015
DELIVERED AT:	Brisbane
HEARING DATE:	Heard on the papers
JUDGES:	Holmes, Fraser and Philippides JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The appellant is to pay the respondents’ costs thrown away by the abandonment of grounds 1, 3(c), 4, 5, 7(a) and (b), 8, 9(a), (b), (e) - (g) and 10 – 14 of the notice of appeal. 2. The respondents are otherwise to pay the appellant’s costs of the appeal.
CATCHWORDS:	APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where the appellant successfully appealed against the quantum of judgment in a personal injuries action – where the awards for general damages and future special damages were increased on appeal but the court did not interfere with the trial judge’s determinations in relation to future economic loss and past and future gratuitous services – whether the respondents should pay the appellant’s costs of the appeal APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where the appellant successfully appealed against the judgment in a personal injuries action – where the appellant abandoned several grounds of appeal on the morning of the appeal – whether the appellant should pay the respondents’ costs thrown away APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – APPEAL COSTS FUND – POWER TO GRANT INDEMNITY CERTIFICATE – where the appellant successfully appealed against the judgment in a personal injuries action – where the respondents applied for an indemnity certificate pursuant to s 15(1) of the Appeal Costs Fund Act 1973 (Qld) – where the respondents argued that they had not caused or contributed to error by the trial judge – whether the appeal succeeded “on a question of law” within the meaning of s 15(1) – whether the Court should grant an indemnity certificate Appeal Costs Fund Act 1973 (Qld), s 15(1) Allianz Australia Insurance Ltd v McCarthy [2012] QCA 312, cited Allianz Australia Insurance Ltd v McCarthy [2013] 1 Qd R 503; [2012] QCA 331, cited R v Moti[2010] QCA 241, cited Vella v Larson [1982] Qd R 298, cited
COUNSEL:	No appearance by the appellant, the appellant’s submissions were heard on the papers No appearance by the respondents, the respondents’ submissions were heard on the papers
SOLICITORS:	Eureka Legal for the appellant Cooper Grace Ward for the respondents