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

1. 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 judgment for a larger amount substituted.  (There is no contention that the trial judge’s costs order should be altered.)  This Court increased the award for general damages (as to which the wrong ISV scale under the Civil Liability Regulations 2003 had been applied) and awarded an amount for future special damages (for which no award had been made) increasing the judgment sum by some $10,000 in total.

2. The respondents’ position is that the trial judge’s error in respect of the first was the fault of the appellant in directing him to the wrong ISV scale, while they did not contribute in any way to the failure to award future special damages. They were successful on appeal in resisting further challenges to the trial judge’s awards for future economic loss and past and future gratuitous services. Accordingly, there should be no costs order made; if any were, an indemnity certificate under s 15(1) of the Appeal Costs Fund Act 1973 should be granted. The respondents make a further submission that the appellant should pay their costs thrown away by the abandonment at the hearing of the appeal of a number of the appeal grounds.

   Costs of the appeal

3. It was common ground that the trial judge had wrongly been referred to an ISV range of 5 – 15, rather than the correct range of 10 – 15.  There was further dispute, however, as to whether the trial judge had made any allowance for a minor psychiatric injury which it was admitted that the appellant had suffered.  The respondents’ argument was that the trial judge had a discretion as to whether to take the additional injury into account.  The Court concluded that there was an oversight in that regard, rather than an exercise of discretion, and made a fresh assessment, taking into account that injury and applying the appropriate range.  The error, then, was not limited to the one induced by the appellant’s counsel below, and there remained an area of dispute on appeal which required resolution by this Court.

4. The trial judge made no award for future special damages, although he had found that the appellant’s injury was likely to cause her pain and restriction into the future.  The respondents suggested that he had decided against making any finding and, in the alternative, that any amount involved was so trivial that no adjustment of the award was necessary.  The Court again found that the omission of an award was a matter of oversight rather than decision, and, taken with the necessary adjustment to the general damages award, entailed an amount which warranted correction of the judgment sum.

5. The respondents correctly contend that the respective mistakes by the trial judge were not attributable to any fault on their part.  However, in respect of the first, they advanced further arguments as to how it should be corrected, and they did not concede the second.  Notwithstanding that the appellant failed on further grounds concerning the awards for future economic loss and past and future gratuitous services, she had a substantial degree of success on the appeal and should have her costs, subject to the question of abandonment of appeal grounds.

   Indemnity certificate

6. As to the application for an indemnity certificate, s 15 of the Appeal Costs Fund Act provides:

   “(1)Where an appeal against the decision of a court—

   (a)      to the Supreme Court

   …

   on a question of law succeeds, the Supreme Court may, upon application made in that behalf, grant to any respondent to the appeal an indemnity certificate in respect of the appeal…”

7. While the failure to make material findings may amount to error of law, I do not think that the corrections of oversight entailed here can properly be characterised as the success of the appellant’s appeal “on a question of law” within the meaning of s 15(1).[1]  The respondents have relied on the decision of this Court in Allianz Australia Insurance Ltd v McCarthy[2] in which the respondent obtained an indemnity certificate after a failure to reveal the methodology behind an award for future economic loss founded a successful appeal. That case, however, entailed consideration of the requirements of s 55(3) of the Civil Liability Act 2003, and whether it had been properly applied to the evidence.[3]  Here, there was no dispute as to the mistaken application of the ISV scale.  The only questions were not of law but whether as a matter of fact the trial judge had made decisions against allowing for psychiatric injury and future needs, or simply overlooked those aspects; and once the latter had been determined, the amount of the awards.  I do not, therefore, consider that the statutory precondition for granting a certificate is established.

   Abandonment of appeal grounds

   [1]See Vella v Larson [1982] Qd R 298 at 301; R v Moti [2010] QCA 241 at [5].

   [2][2012] QCA 331.

   [3]Allianz Australia Insurance Ltd v McCarthy [2012] QCA 312 at [59]-[65].

8. However, the respondents’ further contention that they should receive their costs thrown away by abandonment of parts of the notice of appeal on the morning of the hearing has considerable force.  Of 15 grounds, six were pursued, some of those only in part.  The appellant had originally attacked the trial judge’s credit findings, asserted that he had erred in rejecting the evidence of four experts, and challenged his findings of fact in relation to future economic loss and pain and suffering on several fronts.  In the event, the questions for consideration were distilled to confined issues concerning four heads of damage.  The approach of the appellant’s counsel in sensibly and realistically refining the matters for resolution is to be commended; but the respondents’ legal representatives must have been put to substantial, and ultimately pointless, efforts in preparation by reference to the existing notice of appeal.  The grounds concerning credit and findings of fact in particular would have required an extended review of the transcript of the trial and exhibits, which were of considerable volume.  In the circumstances, I consider that the respondents should have their costs thrown away by the abandonment of grounds.

   Costs orders

9. I would make the following 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.

10. FRASER JA:  I agree with the reasons for judgment of Holmes JA and the orders proposed by her Honour.

11. PHILIPPIDES JA:  I agree with the orders proposed by Holmes JA for the reasons stated by her Honour.