Wood v Glaxo Australia Pty Ltd - [1993] QCA 206

IN THE COURT OF APPEAL

[1993] QCA 206

SUPREME COURT OF QUEENSLAND

Appeal No. 37 of 1992

Brisbane

[Wood v. Glaxo Australia Pty Ltd]

BETWEEN:

MARY ELLEN WOOD

Appellant

- and -

GLAXO AUSTRALIA PTY LTD

Respondent

THE CHIEF JUSTICE
DAVIES J.A.
AMBROSE J.

Judgment delivered 07/06/1993

REASONS FOR JUDGMENT - THE COURT

SET ASIDE THE ORDER AS TO COSTS MADE BY THIS COURT ON 30 MARCH
1993 AND SUBSTITUTE THEREFOR THE FOLLOWING ORDERS:

1. APPELLANT TO PAY THE RESPONDENT'S COSTS OF AND INCIDENTAL TO THE APPELLANT'S APPLICATION FOR AN EXTENSION OF TIME WITHIN WHICH TO APPEAL.
2. RESPONDENT TO PAY THE APPELLANT'S COSTS OF THE APPEAL AND OF THE HEARING BELOW ON THE APPLICATION FOR AN EXTENSION OF THE PERIOD WITHIN WHICH THE ACTION MIGHT BE COMMENCED.
3. APPLICATION FOR A CERTIFICATE UNDER S.15(1) OF THE APPEAL COSTS FUND ACT 1973 REFUSED.

CATCHWORDS: APPEAL AND NEW TRIAL - COSTS - whether successful appellant should pay respondent's costs of application for extension of time to appeal

APPEAL AND NEW TRIAL - COSTS - Applicant seeks indemnity certificate following successful appeal by appellant from decision refusing extension of time to commence proceedings against applicant - whether question of sufficiency of evidence to establish appellant's right of action a question of law within s. 15(1) Appeal Costs Fund Act
s. 15(1) Appeal Costs Fund Act

Counsel:	Mr K. Cullinane Q.C. with him Mr P. Cleary for the Appellant Mr R. Meldrum Q.C. with him Mr A. Lyons for the Respondent
Solicitors:	Messrs Walsh Halligan as t/a for MacDonnells for the Appellant Messrs Clarke & Kann as t/a for Williams Graham & Carmen for the Respondent
Hearing Date(s):	1-2 September 1992

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 37 of 1992

Brisbane

Before The Chief Justice Mr Justice Davies Mr Justice Ambrose

[Wood v. Glaxo Australia Pty Ltd]

BETWEEN:

MARY ELLEN WOOD

Appellant

- and -

GLAXO AUSTRALIA PTY LTD

Respondent

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 07/06/1993

Judgment in this appeal was delivered on 30 March 1993. By majority, the court ordered that the time for service by the appellant of its notice of appeal be extended, the appeal be allowed and the respondent pay the appellant's taxed costs of the appeal and of the hearing below. At that time, on the application of the respondent, the parties were permitted to make further submissions with respect to costs. The respondent subsequently delivered submissions seeking first, an order that the appellant pay the respondent's costs of and incidental to the appellant's application for an extension of time within which to appeal and second, a certificate under s.15(1) of the Appeal Costs Fund Act 1973. The appellant also delivered submissions, arguing that there should either be an order that the respondent pay the appellant's costs of the extension of time application, or that the court should make no order as to the costs of that application.

The application for an extension of time to appeal was necessitated ultimately…

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.

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Details

Case: [1993] QCA 206
Decision Date: 7/06/1993

CaseChat Overview and Summary

The Court of Appeal of the Supreme Court of Queensland delivered judgment in the matter of Mary Ellen Wood (appellant) versus Glaxo Australia Pty Ltd (respondent) on 7 June 1993. The appeal centred on an extension of time granted to the appellant to appeal against the chamber judge's refusal to extend the limitation period for the appellant's action against the respondent. The legal issues before the court were whether the appellant should pay the respondent's costs of the application for an extension of time to appeal and whether the court should grant an indemnity certificate under s. 15(1) of the Appeal Costs Fund Act 1973.

The court found that the appellant should bear the costs of the application for an extension of time to appeal due to the appellant's default in filing the notice of appeal within the required timeframe. The court noted that while the appellant had some delays in obtaining advice from the Legal Aid Office, it was ultimately the appellant's solicitors' misunderstanding of the court process that led to the late filing of the notice of appeal. The court held that the appellant's solicitors should have been aware of the requirement to file the notice of appeal even if the chamber judge's judgment had not been perfected. Regarding the indemnity certificate, the court determined that the question of sufficiency of evidence, although a question of law, was not the type of situation the Appeal Costs Fund Act was intended to cover. The court referred to previous cases that held similar views on the matter.

As a result of the court's reasoning, the orders made on 30 March 1993 were set aside, and the following orders were substituted: 1) The appellant to pay the respondent's costs of and incidental to the appellant's application for an extension of time within which to appeal. 2) The respondent to pay the appellant's costs of the appeal and of the hearing below on the application for an extension of the period within which the action might be commenced. 3) The application for a certificate under s.15(1) of the Appeal Costs Fund Act 1973 was refused.

Orders