Tamwoy v Solomon - [1995] QCA 447

IN THE COURT OF APPEAL	[1995] QCA 447
SUPREME COURT OF QUEENSLAND

Appeal No. 76 of 1995

Brisbane

Before

McPherson J.A.
Thomas J.
Williams J.

[Tamwoy v. Solomon]

BETWEEN

ROBERT CAMPBELL TAMWOY

(Plaintiff) Respondent

AND

PHILLIP JEFFREY SOLOMON

(Defendant) Appellant
REASONS FOR JUDGMENT - THE COURT
Judgment delivered the 10th day of October 1995

This is an application by the respondent to this appeal, who was the plaintiff at trial in the Supreme Court at Brisbane, for an order under O.26 that the respondent's costs of the appeal be taxed on a solicitor and client basis. The action arose out of a head-on collision which occurred on 13 September 1986 on the Bamaga-Umagico Road at Cape York between a utility being driven north by the appellant and a motor cycle being ridden south by the respondent, as a result of which the respondent was seriously injured.

In the course of the trial the quantum of the respondent's damages was agreed at $800,000, leaving for determination only the issue of liability. As to that, the learned trial judge apportioned responsibility equally, thus reducing the respondent's damages by 50% on account of his share of the blame. On 31 March 1995 judgment was given for the respondent for $400,000 with costs. The costs were ordered to be taxed on a solicitor and client basis, from which it may be inferred that the plaintiff had made an offer to settle under O.26 of the Rules of the Supreme Court.

The appeal was instituted by a notice of appeal dated 21 April 1995. It challenged the decision at trial claiming that liability ought to have been apportioned "principally against the plaintiff, although with some degree of negligence on the part of the defendant ...". The appeal was heard in this Court on 12 September 1995. On the same day it was unanimously dismissed with costs, with each member of the Court delivering ex tempore reasons of his own.

After the appeal had been dismissed, Mr Callinan Q.C., who led for the respondent, applied for an order that the costs of his client be taxed on a solicitor and client basis. The application was opposed by Mr Clifford Q.C., who appeared for the appellant. Counsel agreed to present written submissions on the matter at a later date, which has since been done. From the material accompanying those submissions, it emerges that on 22 May 1995 the appellant (calling himself "the defendant") acting under O.26 made an offer to settle the appeal on the basis of a payment to the (respondent) plaintiff of $280,000 damages, together with party and party costs and outlays to be agreed (or, in default, taxed) to the date of the offer, in full satisfaction of the plaintiff's cause of action. Paragraph 4 of the offer to settle added that the sum in question was inclusive of amounts which the plaintiff was bound to refund to the Workers Compensation Board, the Department of Social Security, and any other person or entity.

Nothing…

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 Tamwoy v Solomon

Details

AGLC: Tamwoy v Solomon [1995] QCA 447
Case: [1995] QCA 447
Decision Date: 10/10/1995

CaseChat Overview and Summary

In the matter of Tamwoy v Solomon, the dispute arose between the plaintiff, Tamwoy, and the defendant, Solomon. The case was heard in the Supreme Court of New South Wales. The primary issue was whether Order 26 of the Supreme Court rules concerning costs applies to an appeal, specifically in relation to an offer to settle. This legal question was critical as it determined the financial implications for both parties in the context of an appeal.

The court was required to determine whether the rules governing costs in the Supreme Court, particularly those relating to offers to settle, could be extended to cover the costs associated with appeals. This involved interpreting and applying the relevant provisions of Order 26 in conjunction with Ontario Rule 49.10 and considering the precedent set by the case of Niagara Structural Steel (St. Catherines) Ltd. v. W.D. Leflamme Ltd. The court needed to clarify whether such rules could be invoked to influence the costs awarded in an appeal scenario.

The court examined the language and scope of Order 26 and Ontario Rule 49.10, concluding that the rules regarding offers to settle were primarily intended for the primary proceedings and not for appeals. The court found that the precedent in Niagara Structural Steel supported this interpretation, emphasising that the rules should be applied narrowly to their intended context. Consequently, the court ruled that Order 26 does not extend to cover costs in appeals, thereby limiting the application of these rules to the primary proceedings only.

No further orders were made by the court regarding the appeal costs beyond clarifying the scope of Order 26 and Ontario Rule 49.10. The decision underscored the importance of precise interpretation of court rules to avoid unintended consequences in legal proceedings.

Orders