Loading...
Queensland Judgments

beta

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Lamb v Brisbane City Council

 

[2008] QCA 109

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

JOY LAMB
(applicant/first respondent)
v
BRISBANE CITY COUNCIL
(first respondent/applicant)
JANIS STEPHENS
(second respondent/second respondent)

FILE NO/S:

Court of Appeal

PROCEEDING:

Application for Leave Integrated Planning Act Further Order

ORIGINATING COURT:

DELIVERED ON:

9 May 2008

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Keane and Holmes JJA and Wilson J

Separate reasons for judgment of each member of the Court, Keane and Holmes JJA concurring as to the order made, Wilson J dissenting

FURTHER ORDER:

Application for indemnity certificate refused

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – APPEAL COSTS FUND – POWER TO GRANT INDEMNITY CERTIFICATE – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where the application for an indemnity certificate was made by the first respondent almost 12 months after the determination of the matter by the Court – whether the Court should exercise its discretion to grant a certificate notwithstanding the delay in the making of the application

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

Jackson Nominees P/L v Hanson Building Products P/L [2006] QCA 159, cited

Kumer v Suncorp Metway Insurance Ltd & Ors [2007] QCA 175, cited

COUNSEL:

M D Hinson SC for the applicant

P J Lyons QC for the first respondent

No appearance for the second respondent

SOLICITORS:

Brisbane City Legal Practice for the applicant

Freehills for the first respondent

No appearance for the second respondent

[1]  KEANE JA:  On 11 May 2007 this Court allowed an appeal by the Brisbane City Council ("the Council") and set aside the decision of the Planning and Environment Court ("the P & E Court") whereby the P & E Court had upheld Mrs Lamb's application for a declaration that the Council's Heritage Register Planning Scheme Policy for the City of Brisbane was invalid.[1]  This Court also ordered that Mrs Lamb pay the Council's costs of its application for leave to appeal and the appeal to this Court. 

[2] Mrs Lamb now applies to this Court for an indemnity certificate under s 15(1) of the Appeal Costs Fund Act 1973 (Qld) ("the Act") in respect of the costs of the appeal. 

[3] Under s 15(1) of the Act, the Court may grant a certificate to a respondent to an appeal which succeeds on a question of law.

[4] The Supreme Court of Queensland Practice Direction No 1 of 2005 provides, by paragraph 37, that an application for a certificate and any accompanying submissions be made "either orally at the appeal hearing or … within seven days of judgment of the court".  Mrs Lamb's application to this Court was made on 17 April 2008, that is to say almost a year after it should have been made.

[5] By way of explanation for the delay in making the application, it is said that Mrs Lamb sought special leave to appeal from this Court to the High Court of Australia, and if that application had been successful, the present application would have been unnecessary.  This explanation is unsatisfactory.  The application for a certificate could have been made even though special leave was being pursued; and, in any event, Mrs Lamb's application for special leave was refused by the High Court on 4 October 2007, some six months before the present application was made.

[6] While the Court has a discretion to grant a certificate notwithstanding  non-compliance with the time limits in the Practice Direction,[2] and the Court's discretion is a wide one,[3] the lapse of such a long time could reasonably be expected to result in the refusal of a certificate unless there are strong grounds for granting the certificate.  It is not in the interests of the due administration of justice that the Court should be required to devote time to the review of the circumstances of decisions given long ago by stale applications for indemnity certificates.

[7] For my part, I am not persuaded that Mrs Lamb's claim to an indemnity certificate is at all compelling.  The point of law on which the appeal to this Court succeeded was not one of particular difficulty.  The decision of the P & E Court which was held to be erroneous was contrary to an earlier decision of the P & E Court,[4] which this Court concluded was correctly decided.[5]  The learned judge of the P & E Court in this case was persuaded by those acting for Mrs Lamb to take a different view.  The reasons which led his Honour to that conclusion were held to be less than compelling.[6]  The outcome of the appeal to this Court should not have been surprising, especially having regard to the earlier decision of the P & E Court.  Mrs Lamb's application to the P & E Court was always attended by the obvious risk that the earlier decision of the P & E Court would be upheld.

[8] It may be accepted that more difficult questions of statutory construction arose in relation to the re-agitation in this Court of issues in respect of which Mrs Lamb had failed before the learned primary judge in the P & E Court.  As a matter of fairness to Mrs Lamb, this Court gave leave for those issues to be re-agitated before it as a condition of its grant of leave to the Council to appeal.[7]  In this Court, the learned primary judge's conclusions on these issues were, with one exception,[8] upheld.  The point to be made here is that there is no occasion at all for the grant of a certificate under s 15 of the Act in relation to these more difficult questions because these were not the subject of the successful appeal to this Court.

[9] In these circumstances, I am not persuaded that Mrs Lamb has demonstrated a sufficient basis for the grant of a certificate under the Act.

[10]  HOLMES JA:  I agree with the reasons of Keane JA and the order he proposes.

[11]  WILSON J: I would grant Mrs Lamb an indemnity certificate under s 15(1) of the Appeal Costs Fund Act 1973 (Qld).

[12]  Under that provision this Court has an unfettered discretion to grant such a certificate where an appeal to it succeeds on a question of law.  Factors relevant to the exercise of that discretion include the difficulty of the question of law, the importance of the question of law and the timeliness of the application for a certificate.

[13]  The Brisbane City Council needed the leave of this Court to appeal against the decision of the Planning and Environment Court ("P & E Court").  In granting leave this Court described the application as raising "a vexed question" as to the operation of s 2.1.23(4) of the Integrated Planning Act 1997 (Qld) ("IPA") in that the impugned decision was at odds with an earlier decision of another judge of the P & E Court, and it described the provision as an important one in the IPA.[9]  While the discretion to grant leave to appeal is a quite different discretion from the discretion to grant an indemnity certificate, in my view that characterisation of the issue on the appeal is pertinent to the present application.

[14]  There is no time within which such an application must be brought prescribed in the Appeal Costs Fund Act, and it would certainly not be conducive to the due administration of justice for this Court to condone undue delay in doing so.  Delay of almost one year since the appeal was allowed is quite reprehensible, and I respectfully agree with my colleagues that the explanation proffered is unsatisfactory.

[15]  Pursuant to Practice Direction No 1 of 2005 paragraph 37, such an application should be made "either orally at the appeal hearing or ... within seven days of judgment of the court."  While a practice direction is not subordinate legislation,[10] it is a clear statement of what the Court regards as good practice in this area, and failure to comply with it is relevant to the exercise of the Court's discretion to grant a certificate.

[16]  In all the circumstances, I consider that the relative difficulty and importance of the question of law outweighs the unsatisfactory explanation for the delay of almost one year.  I would exercise the discretion in favour of Mrs Lamb and grant an indemnity certificate.

Footnotes

[1] Lamb v Brisbane CC & Anor [2007] QCA 149.

[2] Kumer v Suncorp Metway Insurance Ltd & Ors [2007] QCA 175.

[3] Jackson Nominees P/L v Hanson Building Products P/L [2006] QCA 159.

[4] Collier & Anor v Brisbane CC & Anor; Sexton & Anor v Brisbane CC & Anor [2007] QPELR 67; [2006] QPEC 90.

[5] Lamb v Brisbane CC & Anor [2007] QCA 149.

[6] Lamb v Brisbane CC & Anor [2007] QCA 149 at [16] – [25].

[7] Lamb v Brisbane CC & Anor [2007] QCA 149 at [4].

[8] Lamb v Brisbane CC & Anor [2007] QCA 149 at [38] – [51].

[9] Lamb v Brisbane CC & Anor [2007] QCA 149 at [3].

[10] Supreme Court of Queensland Act 1991 (Qld), s 118D(1).

Close

Editorial Notes

  • Published Case Name:

    Lamb v Brisbane City Council & Anor

  • Shortened Case Name:

    Lamb v Brisbane City Council

  • MNC:

    [2008] QCA 109

  • Court:

    QCA

  • Judge(s):

    Keane JA, Holmes JA, Wilson J

  • Date:

    09 May 2008

Litigation History

No Litigation History

Appeal Status

No Status