Smith's Snackfood Company Ltd v Haden (No 2)

[2013] QDC 291

[2013] QDC 291

DISTRICT COURT OF QUEENSLAND

APPELLATE JURISDICTION

JUDGE RYRIE

No 769 of 2013

SMITH’S SNACKFOOD COMPANY LIMITED           Appellant                   
and

NICOLE LEANNE HADEN  Respondent

BRISBANE

10.04 AM, TUESDAY, 12 NOVEMBER 2013

JUDGMENT

HER HONOUR:   This is the matter of Smith’s Snackfood Company Limited against Nicole Leanne Haden, appeal number 769/2013, registry of Brisbane.  This is an application on behalf of the respondent, who was the plaintiff in the lower proceedings before the Magistrates Court, for a certificate pursuant to section 15 of the Appeals Costs Funds Act of 1973.  On the 17^th of October 2013, I had published my reasons as a result of hearing the appeal that had been bought on behalf of the appellant, defendant at first instance, Smith’s Snackfood, against the decision of the magistrate which had been given.  I allowed the appeal and I set aside the order that had been made by the magistrate at first instance and instead ordered that judgment be given to the plaintiff in the sum of $31,501.59. 

I then invited the parties to provide written submissions as to costs, of which I’ve now received.  I’ll mark, for the purpose of this application, the respondent’s outline on submissions of costs as an exhibit 1.

EXHIBIT #1 ADMITTED AND MARKED

HER HONOUR:   And what I have, as well, an email addressed to my associate, a copy of which I have in front of me, which will be marked as an exhibit 2, which was received on behalf of the appellant in the appeal.

EXHIBIT #2 ADMITTED AND MARKED

HER HONOUR:   Referring to exhibit 2, it is clear that the position of the appellant is that it holds instructions that it agrees with the respondent’s submissions on costs and abides by the Court’s order in respect of the appeal’s costs fund indemnity certificate sought by the respondent, and that’s been signed by experienced counsel Mr Wallace Campbell.  In short, the respondent plaintiff’s submissions is that it’s an appropriate matter for the granting of an indemnity certificate pursuant to section 15 of the Appeals Costs Funds Act.  That section, relevantly, allows, “Where there’s been an appeal against a decision of a court to the District Court on a question of law succeeds, the District Court may, upon application made in that behalf, grant to any respondent to the appeal an indemnity certificate in respect of the appeal.” 

The instance and the summary, again helpfully set out in the decision of Allianz Australia Insurance Limited v McCarthy, number 372 of 2002 before the Court of Appeal, helpfully sets out at page – at paragraph 10 and thereafter in that decision what is required to be demonstrated before an indemnity certificate might well be ordered to be paid, pursuant to the relevant section I’ve just quoted.  Normally, in circumstances, prima facie at least, where an appeal has succeeded on a question of law, which was the case here as a result of my decision, then prima facie it may well entitle the person making an application as a respondent to seek an indemnity certificate in the circumstances.

Reference to the actual section itself suggests that there has to be no error, as it were, or information that was placed before the Court at first instance that might well have led to the magistrate falling into error in the manner he did.  I’m satisfied with reviewing the file and reading, particularly, the outline of submissions that were made initially before the magistrate as they appear on the primary court file, which were, clearly, an outline on the submissions made on behalf of the plaintiff, that there was nothing evidenced in those submissions that the respondent plaintiff in any way caused the magistrate to fall into error.  Indeed, on the first ground, it was clear that both parties, both the plaintiff and the defendant, advised the magistrate that he was to deduct from any judgment, if it was granted in respect of damages, the amount of a work cover refund, and it was simply, in my view, an oversight by the magistrate that he failed to do so.

The second ground, of course, succeeded on the basis that the magistrate had fallen into error when it came to calculating future economic loss. It was clear that the magistrate had reference to the relevant section under the Workers Compensation and Rehabilitation Act, 306J, in circumstances where he attempted to set out the assumptions on which the award was based and the methodology he used to arrive at the award in circumstances where the earnings could not be precisely calculated. However, as evidenced by my findings and the submissions that were made on behalf of the appellant defendant, that it was clear that the magistrate attempted to precise future economic loss on a yearly figure, which then required him to apply the relevant multiplier tables of five per cent which he failed to do.

I have looked carefully at the submissions made by the plaintiff at first instance, and there’s nothing in the submissions that were made by counsel, Mr Lynch and indeed by Mr Campbell, that would suggest that the magistrate was led into error in any way in believing that in those circumstances when he had used a figure with precision over the course of a weekly figure to calculate future economic loss that he wasn’t required to, then have reference to the five per cent multiplier tables, failed to do so, and as I’ve pointed out in my reasons – in my published reasons, that that is an error, and even notwithstanding that error, there was other grounds in any event where, in my view, the magistrate failed to give sufficient weight to, which is again set out in my decision, which again neither party, in my view, particularly in this case the respondent seeking the indulgence of an appeals costs fund indemnity certificate, in any way misled the magistrate into error.

In fact, the way I see it, both parties, both experienced counsel at the first instance, assisted the magistrate as best as they could in what is undoubtedly circumstances where most magistrates are given matters in circumstances where they have very little time to attend to those matters allocated to them before starting in a busy list in the Magistrates Court on other matters.  So in the circumstances, I consider that the order that’s being sought by the respondent for the indemnity certificate is appropriate.  The error of law has been demonstrated, and it was not in any way induced by or caused by any submissions that were made by the respondent plaintiff in the outline of submissions and indeed submissions that were made orally before the magistrate.

As I’ve said, ground 1 appears simply to have been an oversight by his Honour at first instance, and in relation to the second it was simply unclear the methodology and the oversight again in relation to the failure to use the multiplier tables.  All of which, as I’ve said, are readily explicable, and I’m aware that magistrates are very busy these days.  Nevertheless, busy or not, an indemnity certificate, in my view, in the circumstances, should be ordered.  There’s no real argument to that effect by Mr Campbell on behalf of the defendant, and I consider therefore that, bearing in mind the guidance I’ve been given by the decision of McCarthy starting at paragraph 10, which as I’ve said, helpfully, as usual, sets out all the principles that are relevant.  Taking into account the submissions that have been made in exhibit 1, that this is a case that is appropriate for an indemnity certificate. 

Therefore, the orders in respect of the costs shall be as follows:

1. the order made in respect of the respondent’s cost at the proceedings in the Magistrates Court be set aside;

2. there be no order as to costs in respect of the Magistrates Court proceedings;

3. the respondent pay the appellant’s costs of the appeal to be assessed on a standard basis and;

4. an indemnity certificate pursuant to section 15 of the Appeals Costs Funds Act 1973 (Qld) be granted in favour of the respondent in respect of the costs order to be paid to the appellant and with respect to her own costs at the appeal.

As the usual practice, I’ll wait for the certificate to be prepared on behalf of the respondent plaintiff in order that I can then, in due course, sign it and it can be processed.  These reasons I ask to be published, even though it’s been provided by me ex tempore, and both parties will, once that’s done, be provided a copy of it in order that the matter then can be completed to finality. 

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