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 because of the appellant's default. It is true that the appellant experienced some delays in having to refer the matter to the Legal Aid Office in order to obtain an advice as to the prospects of success on appeal. However, on the evidence presented to us it seems that the notice of appeal could nevertheless have been filed within time had the appellant's solicitors not been labouring under the misapprehension that the learned chamber judge's judgment had to be perfected before the notice of appeal could be filed. We are therefore of the opinion that the appellant should be ordered to pay the respondent's costs of and incidental to the application for an extension of time within which to appeal.

In our opinion, it is not appropriate that the respondent be granted an indemnity certificate. The respondent was the successful defendant in an application by the plaintiff under s.31 of the Limitation of Actions Act 1974 for an extension of time within which to institute proceedings against the defendant. In these proceedings, the plaintiff alleges that she contracted adhesive arachnoiditis from the use of a substance called myodil in a myelogram she underwent in 1972.

She further alleges that the defendant, as the manufacturer of myodil, was negligent either in its distribution and sale of the product or in its failure to warn her of the dangers of its use. In a decision delivered on 28 February 1992, the learned chamber judge found that the plaintiff had established that a material fact of a decisive character relating to her right of action was not within her means of knowledge until a date after the commencement of the last year preceding the expiration of the limitation period. However, his Honour refused to extend the period of limitation, having concluded that the plaintiff had failed to show, as she was required to do by s.31(2)(b) of the Act, that there was evidence to establish her right of action.

On appeal, the majority of this court agreed with the learned chamber judge that the plaintiff did not have means of knowledge of a material fact of a decisive character until after the commencement of the year immediately preceding the issue of the writ. However, unlike the chamber judge, the majority held that there was evidence to establish the plaintiff's right of action and therefore allowed the appeal.

Section 15(1) of the Appeal Costs Fund Act provides:

"Where an appeal against the decision of a court -
(a) to the Supreme Court; ...
on a question of law succeeds, the Supreme Court may,
upon application made in that behalf, grant to any
respondent to the appeal an indemnity certificate in
respect of the appeal."

It is true that, technically, the question of sufficiency of evidence is a question of law. However, the point has been made on several occasions that such a question really only involves an assessment and weighing of the facts of the case, and is therefore not the type of situation with which legislation such as the Appeal Costs Fund Act is primarily concerned. See, for example, Richards v. Faulls Pty Ltd [1971] W.A.R. 129 at 138; Vella v. Larson [1982] Qd.R. 298 at 302; Gurnett v. Macquarie Stevedoring Co. Pty Ltd (No.2) (1956) 95 C.L.R. 106 at 113.

In the circumstances then, we would 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.