Walker v Symonds

[2014] QCA 184

SUPREME COURT OF QUEENSLAND

CITATION:

Walker v Symonds & Anor [2014] QCA 184

PARTIES:

TANYA JANE WALKER
(applicant/appellant)
v
MICHAEL SYMONDS
(first respondent)
ALLIANZ AUSTRALIA INSURANCE LIMITED
ABN 15 000 122 850
(second respondent)

FILE NO/S:

Appeal No 12312 of 2013
DC No 1425 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal – Further Orders

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

5 August 2014

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Holmes JA and Atkinson and Dalton JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

The respondents pay the appellant’s costs of this appeal.1.    

The costs of the first trial abide the decision in the second trial.2.    

The application for an indemnity certificate under s 15(1) of the Appeal Costs Fund Act 1973 is allowed.3.   

CATCHWORDS:

PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – COSTS OF THE WHOLE ACTION – GENERALLY – whether the respondent should pay the appellant’s costs of this appeal – whether the costs of the first trial should abide the result of the new trial

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – APPEAL COSTS FUND – POWER TO GRANT INDEMNITY CERTIFICATE – WHEN GRANTED – where the appellant was the plaintiff in a personal injuries action – where the appellant succeeded in its appeal – where a new trial was ordered because the trial judge did not give proper reasons for decision – whether the respondents should be granted an indemnity certificate pursuant to s 15(1) of the Appeal Costs Fund Act 1973 (Qld)

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

Suncorp Metway Insurance Ltd v Kilner[2013] QCA 42, followed
Suncorp Metway Insurance Ltd v Kilner[2013] QCA 69, followed

COUNSEL:

No appearance for the applicant/appellant, the applicant/appellant’s submissions were heard on the papers
No appearance for the respondent, the respondent’s submissions were heard on the papers

SOLICITORS:

Shine Lawyers for the applicant/appellant
Sciaccas Lawyers & Consultants for the respondents

1. HOLMES JA:  I agree with the reasons of Dalton J and the orders she proposes.

1. ATKINSON J:  I agree with the reasons for judgment of Dalton J and the orders proposed by her Honour.

1. DALTON J:  After delivery of the Court’s judgment ordering a new trial of this personal injuries proceeding in the District Court, written submissions were received from both parties as to their costs.  This Court set aside the judgment below on the basis that the trial judge did not give proper reasons for his decision.

1. The appellant asked for her costs of the appeal and an order that the costs of the first trial below abide the result of the new trial.  The orders sought by the appellant are appropriate in the circumstances.

1. The respondents apply for an indemnity certificate pursuant to s 15(1) of the Appeal Costs Fund Act 1973 (Qld). This too is appropriate: the error was one of law and there was no fault on behalf of the respondents which contributed to that error. If authority is needed for such a course it is found in the two decisions of this Court in Suncorp Metway Insurance Limited v Kilner[1] where similar orders were made in similar circumstances.

   [1][2013] QCA 42 and [2013] QCA 69.

1. I would order that the respondents pay the appellant’s costs of this appeal; that the costs of the first trial abide the decision in the second trial, and that the respondents be granted an indemnity certificate in respect of Appeal 12312/13 pursuant to s 15(1) of the Appeal Costs Fund Act 1973 (Qld) with respect to the costs ordered to be paid to the appellant and with respect to their own costs of this appeal.