Suncorp Metway Insurance Ltd v Kilner

SUPREME COURT OF QUEENSLAND

CITATION:

Suncorp Metway Insurance Ltd v Kilner [2013] QCA 69

PARTIES:

SUNCORP METWAY INSURANCE LIMITED
ABN 83 075 695 966
(appellant)
v
KEITH WARREN KILNER
(respondent)
DONALD ROBERT TURNER
(not a party to the appeal)

FILE NO/S:

Appeal No 8940 of 2012
DC No 1542 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal – Further Order

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

2 April 2013

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Muir, Fraser and Gotterson JJA
Judgment of the Court

ORDER:

The respondent is granted an indemnity certificate in respect of appeal no 8940 of 2012 pursuant to the Appeal Costs Fund Act 1973 (Qld) with respect to the costs ordered to be paid to the appellant and with respect to his own costs of the appeal.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL PRACTICE AND PROCEDURE – QUEENSLAND – APPEAL COSTS FUND – POWER TO GRANT INDEMNITY CERTIFICATE – WHEN GRANTED – where the appellant’s appeal was allowed with costs – where the appellant was successful due to trial judge’s errors of law – where these errors were not instigated by counsel for the respondent – where the respondent seeks an indemnity certificate under the Appeal Costs Fund Act 1973 (Qld) – whether the respondent should be granted an indemnity certificate

Appeal Costs Fund Act 1973 (Qld)

COUNSEL:

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

SOLICITORS:

Bray Lawyers for the appellant
Shine Lawyers for the respondent

THE COURT: On 12 March 2013, this Court made orders which, inter alia, allowed the appellant’s appeal with costs. The appeal succeeded on the basis of errors of law on the part of the trial judge which were not instigated by counsel for the respondent. As was observed in Muir JA’s reasons, with which Fraser and Gotterson JJA agreed, this is an appropriate case for the grant to the respondent of an indemnity certificate under the Appeal Costs Fund Act 1973 (Qld).

Accordingly, the respondent is granted an indemnity certificate in respect of appeal no 8940 of 2012 pursuant to the Appeal Costs Fund Act 1973 (Qld) with respect to the costs ordered to be paid to the appellant and with respect to his own costs of the appeal.

CaseChat Overview and Summary

Suncorp Metway Insurance Ltd sought to appeal against a decision made by a trial judge in a case that had significant implications for insurance policy disputes. The trial judge's decision was contested by the respondent, Kilner, on the basis of alleged errors of law made by the trial judge. The appeal was heard in the Queensland Court of Appeal, where the appellant's appeal was ultimately allowed with costs.

The primary legal issue before the Court was whether the respondent should be granted an indemnity certificate under the Appeal Costs Fund Act 1973 (Qld). This certificate would allow the respondent to recover the costs they incurred in the appeal from the appellant, as the appellant's success in the appeal was due to the trial judge's errors of law rather than any fault on the part of the respondent or their counsel. The Court had to determine whether the respondent was entitled to such a certificate, considering the circumstances of the case and the relevant statutory provisions.

In delivering the judgment, the Court found that the respondent was indeed entitled to an indemnity certificate. The Court noted that the trial judge's errors of law were not instigated by the respondent or their counsel, and therefore, the respondent should not bear the costs of the appeal. The Court exercised its discretion under the Appeal Costs Fund Act 1973 (Qld) to grant the respondent an indemnity certificate in respect of the appeal, ensuring that the respondent could recover the costs they had incurred.

The final order of the Court was that the respondent was granted an indemnity certificate in respect of appeal no 8940 of 2012 pursuant to the Appeal Costs Fund Act 1973 (Qld) with respect to the costs ordered to be paid to the appellant and with respect to the respondent's own costs of the appeal. This outcome ensures that the respondent is not left to bear the costs of the appeal due to the trial judge's errors of law.

Orders of the court

The respondent is granted an indemnity certificate in respect of appeal no 8940 of 2012 pursuant to the Appeal Costs Fund Act 1973 (Qld) with respect to the costs ordered to be paid to the appellant and with respect to his own costs of the appeal.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

CITATION:	Suncorp Metway Insurance Ltd v Kilner [2013] QCA 69
PARTIES:	SUNCORP METWAY INSURANCE LIMITED ABN 83 075 695 966 (appellant) v KEITH WARREN KILNER (respondent) DONALD ROBERT TURNER (not a party to the appeal)
FILE NO/S:	Appeal No 8940 of 2012 DC No 1542 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal – Further Order
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	2 April 2013
DELIVERED AT:	Brisbane
HEARING DATE:	Heard on the papers
JUDGES:	Muir, Fraser and Gotterson JJA Judgment of the Court
ORDER:	The respondent is granted an indemnity certificate in respect of appeal no 8940 of 2012 pursuant to the Appeal Costs Fund Act 1973 (Qld) with respect to the costs ordered to be paid to the appellant and with respect to his own costs of the appeal.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL PRACTICE AND PROCEDURE – QUEENSLAND – APPEAL COSTS FUND – POWER TO GRANT INDEMNITY CERTIFICATE – WHEN GRANTED – where the appellant’s appeal was allowed with costs – where the appellant was successful due to trial judge’s errors of law – where these errors were not instigated by counsel for the respondent – where the respondent seeks an indemnity certificate under the Appeal Costs Fund Act 1973 (Qld) – whether the respondent should be granted an indemnity certificate Appeal Costs Fund Act 1973 (Qld)
COUNSEL:	No appearance by the appellant No appearance by the respondent, the respondent’s submissions were heard on the papers
SOLICITORS:	Bray Lawyers for the appellant Shine Lawyers for the respondent