SUPREME COURT OF QUEENSLAND

1. KEANE JA: I agree with the reasons of Fraser JA and with the orders proposed by his Honour.

2. FRASER JA: On 23 February 2004 the respondent was convicted of doing grievous bodily harm to the appellant on 25 October 2002.  On 10 October 2007 a District Court judge awarded the appellant $54,750 compensation pursuant to s 24 of the Criminal Offence Victims Act 1995 (Qld) for the injuries the appellant suffered because of the offence.

3. The appellant appeals on the ground that the award was manifestly inadequate, particularly because of the omission from the award of amounts for various injuries described in the compensation table in schedule 1 of that Act. The appellant contends that he should have been awarded the "scheme maximum" of $75,000 prescribed under s 25(2).^[1]

4. The respondent was not represented in the District Court or at the hearing of the appeal but counsel appointed by the Attorney-General appeared by leave as amicus curiae in the appeal.

The Criminal Offence Victims Act 1995 (Qld)

5. The Act authorises courts to make an order against a person convicted of certain crimes to compensate a person who suffers injury because of that crime.^[2]  Compensation is intended to assist the victim but it does not reflect the compensation to which the victim might be entitled under the common law or otherwise for the injury.^[3]  The term "injury" is defined in s 20 as meaning “bodily injury, mental or nervous shock, pregnancy or any injury specified in the compensation table or prescribed under a regulation."

6. This appeal is concerned only with injuries specified in the compensation table in schedule 1. Injuries of various descriptions, and some injuries of the same description but of differing degrees of severity, are described in separate items in the table. For each item there is a figure, or a range of figures, expressed as a percentage of the scheme maximum, up to or within which compensation may be awarded. The following items in the compensation table are relevant in this appeal:

7. In making a compensation order, a court is limited to ordering the payment of an amount decided under s 25 and no more than the scheme maximum.^[4]  Subsections 25(3) and (4) provide:

“…

(3)If more than 1 amount is payable under subsections (4) to  (6), the amounts must be added together, and, if the total is more than the scheme maximum, only the scheme maximum may be ordered to be paid.

(4)In deciding the amount that should be ordered to be paid for an injury specified in the compensation table, the court is limited to making an order for—

(a)if there is only 1 percentage listed opposite the injury—an amount up to the amount that is the listed percentage of the scheme maximum; or

(b)if there is a range of percentages listed opposite the injury—an amount that is within the listed range of percentages of the scheme maximum….”

8. The significance of the various maxima expressed in the compensation table is explained in s 22(4):

"(4)The maximum amount of compensation provided under this part is reserved for the most serious cases and the amounts provided in other cases are intended to be scaled according to their seriousness."

9. The expression in s 22(4) "maximum amount of compensation "refers to the various maxima expressed in terms of percentages for items in the compensation table and not to the "scheme maximum" of $75,000 prescribed under s 25(2): in fixing the amount of compensation for an injury described in an item it is therefore necessary to assess the seriousness of the injury in comparison with the most serious injury of that kind. ^[5]

Factual background

10. The appellant was 22 years of age at the time of the offence and 27 years of age when his application for criminal compensation was heard and later determined by the primary judge. The offence of which the respondent was convicted involved a vicious assault. On a median strip in a public road the respondent, pushed the appellant who fell to the ground, apparently losing consciousness. The respondent struck and repeatedly kicked the appellant and threw some object at the appellant's head or chest while he lay motionless on the ground. Because there is no basis for thinking that any conduct of the appellant contributed to his injuries or is otherwise relevant to the appropriate award of compensation,^[6] it is not necessary to give any more detailed description of the circumstances of the offence.

11. The sentencing judge referred to the consequences of this savage beating as including that the appellant was left unconscious for two days with severe facial injuries, including extensive fractures and a number of severe lacerations.^[7]  The appellant was initially taken to the Logan Hospital and later transferred to the Princess Alexandra Hospital because of the extent of his injuries.  Consistently with the sentencing judge’s remarks, the primary judge (who had not been the sentencing judge) accepted the appellant's evidence that he did not regain consciousness after the assault until he woke up in hospital two days later.^[8]

12. The primary judge referred to the following brief summary of the appellant's injuries^[9]:

"The applicant's injuries consisted of 'major facial bruising; fractures of the zygoma maxilla, eye socket, and nose; extensive lacerations through the right eyebrow and over the nasal bridge; and injuries to both eyeballs.  On 4 November 2002 the applicant underwent open reduction and internal fixation of the zygoma and attempted reattachment of the right anterior ligament, exploration and reconstruction.  It was noted by Dr Blackstone that had the injuries been left untreated, they would have resulted in gross facial disfigurement, permanent double vision, and possible life-threatening infections'."^[10]

The reasons of the primary judge

13. After the primary judge referred to the effect of s 22(4), as explained in R v Ward, ex parte Dooley,^[11] as being that the court must proceed by assessing the seriousness of a particular injury by comparing it with the most serious case in respect of each individual item in the table, his Honour observed:

"Riddle v Coffey [2002] 133 A Crim R 220; [2002] QCA 337 is authority for the proposition that COVA s 26, read in its entirety, aims to encourage only one criminal compensation order for one episode of injury without duplication."^[12]

14. The judge referred in detail to the applicant's injuries, the evidence in that respect, and the submissions made on his behalf. I will return to those matters. His Honour then made the following observations:

"Global Assessment – Items 1-2, 4, 5, 6-8, 9, 27-28, 29

[18]As McMurdo P stated in Riddle v Coffey, it is important for an assessment to provide full compensation within the limits of COVA without encouraging or authorising duplication of compensation for what is effectively the same injury. [(2002) 133 A Crim R 220, para 18]

[19]In my view, the essential compensable elements of the injuries suffered by the applicant were the facial fracture (Items 6-8) the fractured nose (displacement/surgery) (Item 4), the loss or damage to teeth (Item 5), the loss of vision of one eye (Item 29) and the mental or nervous shock (Items 31-33).  In the circumstances, I consider that the bruising/laceration (Items 1-2), loss or damage of teeth (Item 5), the facial disfigurement/bodily scarring (Items 27-28), the loss of vision (one eye) (Item 29), and the fractured skull/head injury (Item 9) are more appropriately and effectively to be considered part of the compensation which should be awarded in respect of the facial fracture (Items 6-8) and fractured nose (Item 4).  The mental or nervous shock should of course be dealt with separately.

[20]Accordingly, I propose to make the following awards:-

In respect of the facial fracture (Items 6-8), it is clear that this is an extremely serious example of such an injury (which also includes the bruising, teeth damage, facial disfigurement/scarring, and eye damage).  Accordingly I award 30% ($22,500) under Item 8.  The fractured nose (Item 4) is also a serious example of such an injury, and I consider an appropriate award to be 18% ($13,500) under Item 4.”

15. His Honour then dealt with the evidence and submissions concerning the applicant's psychological injuries and made an award in that respect.

16. The assessment of compensation made by his Honour may be summarised as follows:

Issues in the appeal

17. The appellant contended that the primary judge misdirected himself as to the effect of the decision in this Court in Riddle v Coffey.^[13]  It was submitted that the award was manifestly inadequate particularly because his Honour grouped within items 6–8 ("facial fracture") injuries that fell within other descriptions in the table and should have attracted additional percentages of the scheme maximum.

18. It was submitted for the Attorney-General that there was no such error; that the power to make a compensation order was discretionary; and in particular that s 25 "does not fetter the discretion in so far as deciding whether or not to order compensation under s 24 and it does not require that compensation be awarded for each item which can be established on the evidence". It was contended that a judge is "permitted, but not obliged to order … compensation in respect of each item established on the evidence". Support for those propositions was said to be found in the references in the authorities to the courts acting in a way that was fair and reasonable.

Discussion

19. The primary judge referred to s 26 as discouraging duplication.^[14]  It is not necessary to reproduce that provision which, in my respectful opinion, has no application here.  In Riddle v Coffey^[15] this Court decided that s 26 "aims to encourage only one criminal compensation order for one episode of injury; it does not discourage a judge making a criminal compensation order from calculating and adding together the appropriate amount of compensation for a number of injuries arising from one episode by reference to the relevant items in the compensation table in the manner required by s 25(3) and Ward."^[16]  McMurdo P also said: ^[17] 

“The Act intends to provide full compensation within the limits it imposes; it does not encourage or authorise duplication of compensation for what is effectively the same injury.  The correct approach will always depend on what is fair and reasonable on the particular facts of each case, within the limits of the Act, and appeal courts will not lightly interfere with these exercises of discretion…”

20. That passage should not be construed as meaning that the Act confers a discretion to decline to allow compensation for an item established by the evidence merely on the footing that the judge thinks that a “fair and reasonable” result.

21. Although s 24(3) of the Act provides that the Court "may" make a compensation order, which prima facie imports a discretion,^[18] the Act invests courts with a jurisdiction which the courts are obliged to exercise in an appropriate case^[19]:

". . . when a statute confers an authority to do a judicial act in a certain case, it is imperative on those so authorized, to exercise the authority when the case arises, and its exercise is duly applied for by a party interested, and having the right to make the application . . ."

22. In the exercise of the jurisdiction under the Act, the use of the methodology prescribed by s 25 is mandatory. Subsection 25(1) provides that in making a compensation order, “a court is limited to ordering the payment of an amount decided under this section.”  The provision in s 25(7) that “the court must have regard to everything relevant, including, for example, any behaviour of the applicant that directly or indirectly contributed to the injury” does not authorise a court to substitute the court’s view of what is “fair and reasonable” for the methodology prescribed by the Act.  It is not here necessary to attempt to define what matters are relevant under that provision.  It is common ground that it has no application in this appeal.

23. No doubt the courts are obliged to perform the task required by the Act fairly and reasonably and to avoid double compensation for the same consequences of the applicant's injuries, but the legislative intention is that the amount of a compensation order should be the sum of each amount obtained by assessing the seriousness of each injury described in an item by comparison with the most serious example of any such injury, and then scaling up accordingly within the range, or up to the maximum, set out opposite such item. If the total sum exceeds the scheme maximum, then the amount of the order is the scheme maximum.

24. Accordingly, where it is practical to make separate assessments under each applicable item in the table whilst at the same time avoiding duplication that course should be adopted.

25. In some cases that may be impractical. In R v Jones, ex parte Zaicov ^[20] Holmes J referred with approval to Wilson J's observation in M R v Webb^[21] that:

"It is often the case that an applicant's injury could be categorised under more than one head in the compensation table.  Of course an applicant is prima facie entitled to compensation for all the component parts of his or her overall condition resulting from the offence, but the court must be careful to avoid compensating for the same component under more than one head and so overcompensating the victim."

26. Applying that principle, Holmes J observed^[22] that the applicant might have been allowed a separate amount in respect of the scarring (item 28: "bodily scarring (severe)"), but that it was equally open for the judge to regard the scarring as part and parcel of the gunshot wound (item 26: "gunshot wound (severe)").

27. Similarly, in Riddle v Coffey^[23] a separate claim for one item, item 25 ("… stab wounds (moderate)") was excluded from the assessment on the basis that compensation under that item would "effectively twice compensate him for the same injury".^[24]  In expressing that view McMurdo P referred to the facts of the case, which included reference to stab wounds to the applicant's arm and leg, in respect of which amounts near and at the maximum respectively were allowed under items 13 and 19 ("loss of use of right shoulder/arm" and "loss of use of leg (minor/moderate)").  It is apparent that McMurdo P concluded that the compensation that otherwise might have been awarded under item 25 had already appropriately been taken into account by the primary judge under those other items.

28. Those decisions sanction the principle of allowing compensation under only one of two or more items each of which aptly describes an injury suffered by an applicant, but that principle must be applied in a way that preserves the applicant’s entitlement to full compensation assessed in accordance with the Act. In that respect it is necessary to bear in mind that there is no necessary correlation between the various ranges and maxima expressed in the table for different items. The Act unequivocally rejects the common law method, under which compensation for one injury might be compared with compensation for a different injury by reference to the degree of loss of function or other adverse effect upon the applicant resulting from each injury. In a particular case under the Act the specified ranges and maxima in the table may appear arbitrary and unrelated to each other but it is nevertheless the methodology prescribed by the Act which is to be applied.

29. If an injury that is best described in one item is instead assessed together with another injury under another item in order to avoid duplication it may therefore be necessary to make an adjustment to cater for differences between the ranges or maxima for each item. An example of this approach may be found in Helman J’s decision in R v Pangilinan, ex parte Owens^[25]. Helman J, anticipating this Court's decision in Riddle v Coffey, disagreed with the view expressed by Thomas JA in R v Kazakoff; ex parte Ferguson^[26] that s 26 is an obstacle to an assessment for physical injury under more than one item.  Helman J nevertheless adopted the method of assessment that had been used by Thomas JA by assessing compensation for stab wounds causing scarring under item 26 ("stab wound (severe)") which his Honour found to be the appropriate item.  His Honour allowed 35 per cent (out of a maximum of 40 per cent) of the scheme maximum.  Importantly, Helman J added that, had it been necessary to do so, he would have allowed 25 per cent under item 26 and 10 per cent under item 28.

30. That cross-check by reference to the items that most appropriately described the injuries was apt to ensure that the "global" approach adopted by his Honour produced a result that was consistent with methodology prescribed by the Act.

31. Helman J also postulated an example of direct relevance to this appeal in which a cross-check of that character might expose an error in grouping different injuries within one item:

"An assault to the face might for instance cause facial disfigurement (items 27 and 28) and loss of vision in one eye (item 29) which cannot be compensated for adequately under just one item.  It will be important to ensure that there is no duplication of compensation, but it is equally important to ensure that an applicant is as fully compensated as the current scheme properly permits."^[27]

32. I turn then to the application of these principles to the matters in issue in this appeal.

Item 29: “Loss of vision (one eye)…70%”

33. The primary judge found that as a result of the assault the appellant suffers from blurred vision and a blind spot which causes him problems with concentration. The expert medical evidence established that the applicant suffered persistent double vision ("diplopia") in his lateral field of view and pain around the medial side of his right eye and a small area of right mid-lateral field visual defects. His Honour also accepted the further medical evidence that the applicant's right eye had "poor abduction (lateral gaze movement), apparently due primarily to restrictional globe rotation to the right, with possible associated under action of the right lateral rectus muscle, which pulls the eye laterally". There was a consequent misalignment of the two eyes in right gaze with a horizontal and vertical component. The degree of that misalignment varied depending on the direction of the gaze ("incomitant strabismus").

34. His Honour noted that the applicant’s stability when standing might be affected at times and that the medical evidence was to the effect that it was unlikely that he would be able to obtain a driver’s licence because of his diplopia. That might adversely affect the applicant's employment prospects. There was evidence that the applicant had not learned to drive a motor vehicle but that he wanted to do so, at least in part to improve his employment chances.

35. The primary judge found, correctly in my respectful opinion, that the applicant's loss of vision of one eye was one of "the essential compensable elements of the injuries" he suffered.^[28]  His Honour nevertheless concluded that this injury was "more appropriately and effectively to be considered part of the compensation which should be awarded in respect of the facial fracture (item 6–8) and fractured nose (item 4)."

36. His Honour may have reached this view because the loss of vision was a consequence of facial fractures falling within item 8, but in my view that does not justify the exclusion from the assessment of compensation of a separate amount under item 29. The injuries described in these different items are different in character and they are capable of separate assessment without the risk of compensating twice for the same components of an applicant’s injuries.  The applicant is entitled to be compensated in accordance with the prescribed methodology both for his loss of vision and for the facial fractures that caused it.  This does not involve any necessary duplication but merely the compensation prescribed by the Act for what the Act treats as separate injuries.

37. Because the primary judge made no separate assessment under item 29 it is necessary for this Court now to do so. Counsel for the Attorney-General pointed out that at the hearing at first instance the appellant’s counsel sought 5% for this item, but in my opinion that underestimates the loss of function relative to the most serious case of loss of vision in one eye. The issue is at large in this appeal because there is no finding by the primary judge, there were no pleadings, and the application and affidavits at first instance did not limit the claim. The appellant contends for 10 per cent of the scheme maximum, which amounts to one-seventh of the amount payable for the worst case of blindness in one eye. Having regard to the primary judge’s findings, I regard that as reasonable reflection of the comparison between the applicant’s loss of vision in one eye and the worst case of that kind.

38. I would allow 10 per cent of the scheme maximum ($7,500) for this item.

Item 5: “loss or damage of teeth… 1% - 12%”

39. The primary judge found that the applicant suffered a chip to the upper left 1(21) incisor tooth on the distal incisal edge which is about 3 mm in vertical height and 8 mm in width, with lingual splitting.  ("Lingual" refers to the aspect of the tooth touched by the tongue; the back of the front teeth, for example.)

40. This injury was also found by the primary judge to be one of the "essential compensable elements" of the applicant's injuries, but his Honour did not include any separate amount for it. For the reasons I gave in relation to the previous item, I would construe the Act as requiring a separate assessment of compensation for this injury, which falls within the very specific description in item 5.

41. The appellant claimed 2% of the scheme maximum (one-sixth of the maximum for this item) with reference to what was said to be a comparable decision.^[29]  For this chip to the tooth the figure claimed by the appellant at first instance, 1% (one-twelfth of the maximum for this item) ($750) strikes me as a reasonable reflection of the comparison between the applicant’s injury and the worst case of the kind that falls within this item.

Item 1: Bruising /laceration etc. (moderate) …1% - 3%

Item 2: Bruising /laceration etc. (severe) … 3% -5 %

42. The primary judge referred to the facial bruising and abrasions, lacerations to the eyebrow and nasal bridge and injuries to the eyeball on both the right and left sides; his Honour referred to them as "major facial bruising" and "facial scarring".^[30] His Honour also assessed this injury together with the facial fractures under item 8.^[31]  A similar approach had been adopted in Farragher v Daley.^[32]

43. The submission by the appellant was not that there ought to be a separate assessment for bruising and laceration within items 1-2, but that the bruising and laceration should be considered together with the facial fractures and with reference to a notional 35 per cent of the scheme maximum, being the sum of the maximum for bruising and laceration in item 2 (five per cent) and the maximum for severe facial fracture in item 8 (30 per cent). It was contended that the appellant should be allowed 30 per cent in total in respect of the bruising and laceration and the facial fracture.

44. That methodology should not be adopted, in my respectful opinion. The Act does disclose an intention, in items 1 and 2 of the schedule, to allow up to a maximum of five per cent of the scheme maximum for bruising or laceration in addition to up to a maximum of 30 per cent of the scheme maximum for severe scarring or facial disfigurement, regardless of whether the injuries occurred in the same offence and are related. Nevertheless, where separate assessments are practical the approach advocated by the appellant carries it with it the potential for avoidable error. The Act requires a comparison of the bruising and lacerations suffered by appellant with the worst case of bruising and laceration and that the amount of compensation for that injury be determined accordingly by scaling between the one per cent and five per cent of the scheme maximum provided in items 1 and 2. The same exercise is to be separately conducted in relation to the facial fractures described in items 6 to 8, where the scaling exercise must occur within the very different eight per cent to 30 per cent range of the scheme maximum. Combining the injuries and the percentages has the potential to distort the result by wrongly equating the significance of bruising and laceration with that of facial fractures.

45. In this case it is practical to make an assessment in relation to the bruising and laceration separately from the assessment of other injuries described in the table, whilst at the same time avoiding double compensation. That approach should therefore be adopted.

46. Items 1 and 2 refer to bruising and laceration potentially affecting the whole body. I mentioned earlier the primary judge's references to severe and extensive lacerations and major facial bruising. Here the significant bruising and laceration was confined to the face, so that despite its evident severity, I would include it at the low end of the range within item 2. Scaling in accordance with the necessary comparison between this injury and the worst of the kind envisaged by item 2, I would allow three per cent of the scheme maximum ($2,250) for this item.

Item 8: facial fracture (severe) … 20%– 30%

Item 28: facial disfigurement or bodily scarring (severe) … 10% – 30%

47. The appellant does not contend that these items should be separately assessed and in my opinion it is appropriate to assess them together. The severity of the appellant’s facial fractures is substantially contributed to by the disfigurement they produce. It would be very difficult to assess the facial fractures separately from the facial disfigurement without providing compensation twice for the same effects of the appellant’s injuries. Furthermore, it is practicable in this case to make a "global" assessment which groups these different injuries together whilst achieving practically the same result that would be achieved if it were practicable to make an assessment of the facial fractures, divorced from the consequential disfigurement, followed by a separate assessment of the disfigurement. The ranges for those separate items differ but in each case the percentage of the scheme maximum is 30 per cent, so that for severe injuries, such as those sustained in this case, the difference in the ranges is not significant.

48. For these reasons, I would assess these injuries together. Because the primary judge included these and other injuries within his Honour’s "global" assessment it is necessary to make this assessment afresh.

49. The appellant was left with some scarring on his face, but it seems not to have been significant in the long term in comparison with the disfigurement associated with the appellant’s facial fractures. The scars faded and were mostly nearly invisible by the time the application was heard. The much more serious injury described in these items was the facial disfiguration associated with the fractures.

50. The appellant’s facial fractures led to his hospitalisation for about three weeks after the assault, to surgery, to ongoing problems and pain, and to the desirability of further operations. The trial judge found that the appellant had suffered "serious and debilitating facial fractures."^[33]  In that respect his Honour referred with apparent approval to the submission on behalf of the appellant that he had suffered severe facial fractures principally (as the medical evidence established) the fractures to the zygoma (check bone) and maxilla (jaw bone) requiring surgical repair.  His Honour also referred to the applicant's evidence that his surgery involved having four plates inserted around the eye and cheek bone area and an implant which was intended to improve his disfigurement. 

51. There is no doubt that the applicant sustained very severe pain after the surgery: for a period he could only eat through a straw. He continues to suffer pain around the middle area of the right ocular region, and loss of facial sensation on the right side of his face and pain on opening his jaw, with occasional clicking.

52. An ophthalmologist referred to the possibility of further surgical repair, but that was in the context of fractures that caused the appellant's diplopia and the appellant was not keen to pursue it. Pain which the appellant suffered was said by Dr Houston (the Maxillo-Facial Surgeon) to be associated with the right medial canthus region of his face and might improve if the titanium plates that had been implanted were removed. Dr Houston also expressed the views that the right infra orbital plate installed in the appellant's face could also be removed at the same time and consideration might be given to his traumatic telecanthus, and that the appellant's nasal bridge line collapse and lateral displacement of his nasal bones might be corrected with rhinoplastry after the titanium plates had been removed. The likely cost of surgical revision, if the appellant became determined to undergo it (he was not so inclined at the time of the hearing below), would be $20,000.

53. It is clear that the primary judge regarded the facial fractures as being extremely serious but his award of the maximum allowable under item 8 of 30 per cent also included the injuries that I have concluded should not be assessed within these items.

54. Applying the methodology I earlier described, I would assess 25 per cent of the scheme maximum ($18,750) for these injuries.

Item 4 – Fractured nose (displacement surgery) … 8% – 20%

55. The primary judge awarded 18 per cent ($13,500) for this item on the basis that this was a serious example of the injury. The appellant does not challenge that component of the award and I would not disturb it.

Item 9: fractured skull/head injury (no brain damage) … 5% – 15%

56. It appears from paragraphs [19] and [20] of the reasons of the primary judge, quoted above, that his Honour may have intended to include something for this item under the award for facial fracture.

57. There is no evidence that the appellant suffered a fractured skull or any brain damage. To the extent that reference was made to the appellant’s problems with concentration and memory and his stress and distraction, those matters have been attributed to the injury described under item 33 and were allowed for under that item. The primary judge referred to the appellant having woken up in hospital two days after he was knocked unconscious by the offender.^[34]  The appellant gave evidence to that effect in his affidavit.  Reference was also made to those matters in the report of the psychologist, but in my view the evidence does not justify the conclusion that the appellant suffered a head injury that is compensable under this item in addition to item 33.

Item 31: mental or nervous shock (minor) … 2% – 10 %

Item 32: mental or nervous shock (moderate) … 10% – 20%

Item 33: mental or nervous shock (severe) … 20% – 34%

58. The appellant was assessed by a psychologist as being "chronically and severely disabled as all areas of [the appellant's] functioning [have] been affected", which reflected expert evidence as to the appellant’s acute post-traumatic stress and subsequent adjustment disorder with depressive and anxiety features. The appellant does not appeal against the primary judge's assessment of 25 per cent under item 33 ($18,750) and there is no reason to adjust this part of the award.

Summary

59. For the reasons I have given, I would set aside the primary judge’s assessment and instead assess the appellant’s claim as follows:

Disposition

60. I would allow the appeal, set aside the order made in the District Court on 10 October 2007, and in lieu thereof order that the respondent Wilson Conwell Gaulai pay the applicant Andrew John Wren the sum of $61,500 by way of compensation pursuant to s 24 of the Criminal Offence Victims Act 1995 (Qld). 

61. I would order that the respondent pay the appellant's costs of and incidental to the appeal. As in my opinion the appeal should succeed on questions of law, I would also grant the respondent an indemnity certificate under s 15 of the Appeal Costs Fund Act 1973 (Qld).^[35]

62. WHITE J: I have read the reasons of Fraser JA and agree with his Honour and with the orders he proposes.