Liquorland (Australia) Pty Ltd v Gold Coast City Council
[2001] QCA 573
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- Liquorland (Australia) Pty Ltd v Gold Coast City Council[2001] QCA 573
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Liquorland (Australia) Pty Ltd v Gold Coast City Council[2001] QCA 573
Liquorland (Australia) Pty Ltd v Gold Coast City Council[2001] QCA 573
SUPREME COURT OF QUEENSLAND
CITATION: | Liquorland (Australia) Pty Ltd v Gold Coast City Council [2001] QCA 573 |
PARTIES: | RATHERA PTY LTD ACN 001 447 178 (respondent/appellant) v GOLD COAST CITY COUNCIL (respondent/respondent) SKEETA PTY LTD ACN 010 631 437 MAYLANE PTY LTD ACN 078 553 072 (appellants/respondents) RATHERA PTY LTD ACN 001 447 178 (respondent/appellant) v GOLD COAST CITY COUNCIL (respondent/respondent) ALH GROUP PTY LTD ACN 067 391 511 (appellant/respondent) RATHERA PTY LTD ACN 001 447 178 (respondent/appellant) v GOLD COAST CITY COUNCIL (respondent/respondent) LIQUORLAND (AUSTRALIA) PTY LTD ACN 007 512 414 (appellant/respondent) |
FILE NO/S: | Appeal No 433 of 2000 Appeal No 434 of 2000 Appeal No 436 of 2000 P & E Appeal No 538 of 1999 |
DIVISION: | Court of Appeal |
PROCEEDING: | Planning & Environment Appeal |
ORIGINATING COURT: | Planning and Environment Court at Southport |
DELIVERED ON: | Judgment delivered on 14 December 2000 Further order delivered on 16 February 2001 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 19 September 2000 |
JUDGES: | McPherson JA, White and Jones JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made |
FURTHER ORDER: | That the Application brought by the Second Respondent for the grant of an indemnity certificate under the Appeal Costs Fund Act 1973 is dismissed. |
CATCHWORDS: | PROCEDURE - COURTS AND JUDGES GENERALLY – Courts – Appellate Jurisdiction – scope of s 15(1) of the Appeal Costs Fund Act 1973 – whether s 3.2.1(3)(a)(i) of the Integrated Planning Act 1997 falls within scope of s 15(1) of the Appeal Costs Fund Act 1973 – whether Court able to exercise its discretion to grant indemnity certificate under Appeal Costs Fund Act 1973. Appeal Costs Fund Act 1973 (Qld), s 15(1) Integrated Planning Act 1997 (Qld), s 3.2.1(3)(a)(i) Lauchlan v Hartley [1980] Qd R 149, considered Sheridan v Nikolic [1982] Qd R 725, considered Vella v Larson [1982] Qd R 298, considered |
COUNSEL: | M D Hinson SC for the appellant B G Cronin for the respondent C L Hughes for the second respondent in Appeal 436/2000 |
SOLICITORS: | Lazarides Development Consultant for the appellant McDonald Balanda & Arcuri for the respondent McCullough Robertson for the second respondent in Appeal 436/2000 |
- McPHERSON JA: I agree that this is not an appeal in which a certificate under the Appeal Costs Fund Act 1993 is warranted.
- WHITE J: I agree with Jones J that this is not an appeal in which a certificate under the Appeal Costs Fund Act 1993 is warranted and the application should therefore be refused.
- JONES J: The second respondent, unsuccessful in this appeal, seeks the grant of an indemnity certificate under the Appeal Costs Fund Act 1973 (“the Act”).
- The appeal concerned a question of law, namely the proper construction of s 3.2.1(3)(a)(i) of the Integrated Planning Act 1997 (“IPA”) and this falls within the scope of s 15(1) of the Act, which gives rise to the Court’s discretion to grant a certificate.
- The nature of this discretion and the factors to which regard is commonly had in its exercise have been the subject of a number of reported decisions. Counsel for the second respondent has referred us particularly to Lauchlan v Hartley[1] and Sheridan v Nikolic.[2] In the former, Connelly J with whom other members of the Full Court (Wanstall CJ, Lucas SPJ) agreed, when considering whether submissions relied on in the Court below were ‘reasonably advanced’ or ‘fairly arguable’ said (at p 159):-
"Where a decision is reversed on a point of law it will frequently be the case that both sides of the debate are fairly arguable. Thus a situation in which the authorities are or appear to be in conflict provides an obvious instance in which a resort to the appellate process is justifiable although of course the limits to which it can properly be taken at the expense of the fund must depend on the particular circumstances. Again the proper construction of a particular instrument will often call for a nice balancing of competing considerations so that the opposing views may properly be regarded as fairly arguable. Again, appeals from the exercise of a judicial discretion will frequently turn upon the weight to be given to one or more of the relevant considerations. Yet another instance is provided by the appeal from a value judgment such as those aspects of the assessment of damages which are at large.
A different category of case altogether however is that where the Full Court is of the view that there was no basis on which the judgment or order under appeal could properly have been made. In such case it is material to consider the part played by the unsuccessful respondent in leading the tribunal to the decision. Where the advocate, barrister or solicitor, invites a decision for which there is no legal warrant, or which is inconsistent in some respect with settled legal principle, the question arises whether his contentions were in truth fairly arguable. If, in the opinion of the Full Court, the legal warrant was arguably available or the settled principle was arguably distinguishable, the respondent may still succeed in obtaining a certificate. If not he will ordinarily fail to obtain the certificate.”
- The latter case concerned the construction of a special condition in a contract for the sale of land. The resolution of the appeal was made difficult by the absence of direct authority on the point and the need to distinguish a prior decision of the appellate court. The decision ultimately was based on reasons which were not argued by counsel in the court below. In considering this question McPherson J (as he then was) stated (at p 730):-
“The question therefore is to determine whether the submissions on which the plaintiff succeeded before the trial judge were fairly arguable. The strongest indication that they were is that those submissions succeeded; that is, that they were accepted by His Honour in the court below. To say that the submissions of the plaintiff were not fairly arguable seems with respect, necessarily to imply that they should have been instantly or readily recognizable as contrary to established principles of law or authority. I do not think that the present is such a case. Unlike the matter of Vella v Larson [1982] Qd R 298 the instant appeal succeeded on what may be described as a pure point of law, depending on the construction of the special conditions of contract.”
- The case of Vella v Larson referred to in the above passage concerned a question of the sufficiency of evidence for the consideration by a jury determining an issue of unconscionable bargain. Macrossan J (with whom Wanstall CJ and Dunn J agreed) considered that the grant of a certificate under the Act is not meant to be automatic simply because the appeal succeeds on a question of law. He said, (at p 301):-
“To obtain a certificate the obligation is upon the applicant to show some ground calling for the exercise of the discretion in his favour and he does not do this merely by showing that the appeal has succeeded on a question of law...
It has also become well established that the conduct of the applicant below and his responsibility, if any, for the erroneous decision of law in question is of relevance when application is made for a certificate.”
- The arguments raised on appeal appear to have been essentially the same as those relied on in the court below. It was the second respondent who identified the issue then pursued it as a preliminary point before the learned hearing judge. At that stage, and again on appeal, the second respondent argued forcefully against the construction ultimately adopted by this court.
- Although the relevant subsection of the IPA had not previously been judicially considered, the scheme of this new planning legislation had some consistency with the earlier provisions relating to advertising. The objectives of the advertising requirement remained the same and it was these objectives that determined the proper construction of the new provisions. The fact that this particular provision had not been the subject of prior judicial consideration was not of great significance in this instance when it did little more than broadly follow earlier practice.
- In these circumstances I am not convinced that the court should exercise its discretion to grant a certificate under s 15 of the Act. I would therefore refuse the application.