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Mount Isa City Council v The Mount Isa Irish Association Friendly Society Ltd (No 2)

 

[2018] QCA 269

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Mount Isa City Council v The Mount Isa Irish Association Friendly Society Ltd [2018] QCA 269

PARTIES:

MOUNT ISA CITY COUNCIL
(applicant)
v
THE MOUNT ISA IRISH ASSOCIATION FRIENDLY SOCIETY LTD
ACN 087 649 349
(respondent)

FILE NO/S:

Appeal No 557 of 2018

SC No 13137 of 2016

SC No 253 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal – Further Order

ORIGINATING COURT:

Supreme Court at Brisbane – [2017] QSC 316 (Daubney J)

DELIVERED ON:

12 October 2018

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Sofronoff P and Gotterson and Philippides JJA

ORDERS:

The application for an indemnity certificate is granted.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – APPEAL COSTS FUND – POWER TO GRANT INDEMNITY CERTIFICATE – WHEN GRANTED – where the unsuccessful respondent applied for an indemnity certificate pursuant to s 15 of the Appeal Costs Fund Act 1973 (Qld) – where the appeal succeeded on a question of law, namely, the correct interpretation of provisions in s 101 of the Local Government Regulation 2012 (Qld) – where the construction advanced by the respondent had prevailed at first instance and is apt to be categorised as “fairly arguable” – where there was no judicial authority on point – where construction of the provisions was hindered by a defective example – whether the respondent should be granted an indemnity certificate

Appeal Costs Fund Act 1973 (Qld), s 15

COUNSEL:

R G Bain QC, with S D Fynes-Clinton and J P Hastie, for the applicant

G Gibson QC, with P F Mylne, for the respondent

SOLICITORS:

King & Company Solicitors for the applicant

McKeering Down Lawyers for the respondent

  1. [1]
    SOFRONOFF P:  I agree with Gotterson JA.
  2. [2]
    GOTTERSON JA:  Judgment in this appeal was given on 18 September 2018.  The unsuccessful respondent to it, the Mount Isa Irish Association Friendly Society Ltd (“the Friendly Society”), has applied for an indemnity certificate pursuant to s 15 of the Appeal Costs Fund Act 1973 (Qld).  Since the appeal succeeded on a question of law, namely, the correct interpretation of provisions in s 101 of the Local Government Regulation 2012 (Qld), the jurisdiction to grant such a certificate is enlivened.
  3. [3]
    It is true that the construction argument advanced by the Friendly Society unsuccessfully on appeal had prevailed at first instance.  However, that of itself, is no sufficient reason for refusing a grant.[1]
  4. [4]
    Notwithstanding that it was not accepted on appeal, the construction urged by the Friendly Society is apt to be categorised as “fairly arguable”.  It was advanced in circumstances where there was no judicial authority on the point.  Moreover, the task of construction of the provisions was hindered by the defective example given in one of the key provisions under consideration.
  5. [5]
    These factors resonate with those that have been given at the appellate level in Queensland as examples favouring the grant of a certificate.[2]  Having regard to them and the importance of the point generally for local governments in Queensland in levying water rates and charges, I favour the grant of the certificate sought.
  6. [6]
    PHILIPPIDES JA:  I agree for the reasons stated by Gotterson JA that the indemnity certificate sought should be granted.

Footnotes

[1] Lauchlan v Hartley [1980] Qd R 149 per Connolly J at 150 (Wanstall CJ and Lucas SPJ concurring).

[2] Ibid at 151.

Close

Editorial Notes

  • Published Case Name:

    Mount Isa City Council v The Mount Isa Irish Association Friendly Society Ltd

  • Shortened Case Name:

    Mount Isa City Council v The Mount Isa Irish Association Friendly Society Ltd (No 2)

  • MNC:

    [2018] QCA 269

  • Court:

    QCA

  • Judge(s):

    Sofronoff P, Gotterson JA, Philippides JA

  • Date:

    12 Oct 2018

Litigation History

Event Citation or File Date Notes
Primary Judgment [2017] QSC 316 18 Dec 2017 Applications for declarations to the effect that the respondent invalidly levied utility charges for water services on the applicant granted: Daubney J.
Notice of Appeal Filed File Number: Appeal 557/18 15 Jan 2018 -
Appeal Determined (QCA) [2018] QCA 222 [2019] 2 Qd R 302 18 Sep 2018 Leave to file notice of contention refused; appeal allowed; orders set aside; relief sought in originating applications refused: Sofronoff P and Gotterson and Philippides JJA.
Appeal Determined (QCA) [2018] QCA 269 12 Oct 2018 Application for an indemnity certificate granted: Sofronoff P and Gotterson and Philippides JJA.
Application for Special Leave (HCA) File Number: B51/2018 01 Jan 1970 Application for special leave to appeal from [2018] QCA 222.
Special Leave Refused [2019] HCASL 82 20 Mar 2019 Special leave refused: Bell and Nettle JJ.

Appeal Status

{solid} Appeal Determined - {hollow-slash} Special Leave Refused (HCA)