Caltabiano v Electoral Commission of Qld (No 2)
[2009] QCA 222
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Caltabiano v Electoral Commission of Qld (No 2)[2009] QCA 222
- Add to List
Caltabiano v Electoral Commission of Qld (No 2)[2009] QCA 222
Caltabiano v Electoral Commission of Qld (No 2)[2009] QCA 222
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | SC No 3921 of 2009 |
Court of Appeal | |
PROCEEDING: | General Civil Appeal – Further Order |
ORIGINATING COURT: | |
DELIVERED ON: | Judgment delivered 26 June 2009 Further order delivered 31 July 2009 |
DELIVERED AT: | Brisbane |
HEARING DATE: | Heard on the papers |
JUDGES: | Muir and Fraser JJA and Fryberg J Separate reasons for judgment of each member of the Court, each concurring as to the order made |
ORDER: | That the second respondent be granted an indemnity certificate in respect of the appeal pursuant to s 15(1) of the Appeal Costs Fund Act 1973 (Qld). |
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – APPEAL COSTS FUND – POWER TO GRANT INDEMNITY CERTIFICATE – WHEN GRANTED – where proceedings involved an appeal from a decision of the Court of Disputed Returns – where appeal court ordered the second respondent to pay the appellant’s costs – where the appeal involved an “important and fairly arguable question of law” – whether an indemnity certificate should issue Appeal Costs Fund Act 1973 (Qld), s 15(1) Lauchlan v Hartley [1980] Qd R 149, applied |
COUNSEL: | P Dunning SC, with P Baston, for the appellant P A Freeburn SC for the first respondent D C Rangiah SC, with M L Grimshaw, for the second respondent |
SOLICITORS: | RiverLegal for the appellant Crown Law for the first respondent Carne Reidy Herd for the second respondent |
[1] MUIR JA: I agree with the reasons of Fraser JA and with the order he proposes.
[2] FRASER JA: On 26 June 2009 the Court allowed Ms Caltabiano's appeal, set aside the orders made by the primary judge, and instead made orders dismissing the applications filed by the Electoral Commission and Mr Kilburn which had sought the summary dismissal of Ms Caltabiano's originating application.[1] Pursuant to a direction then made by the Court, Mr Kilburn has provided a written submission in support of his application for an indemnity certificate under s 15(1) of the Appeal Costs Fund Act 1973 (Qld) in relation to this Court's order that Mr Kilburn pay Ms Caltabiano's costs of and incidental to the appeal.
[3] I accept the submission made for Mr Kilburn that the case is one within the first category described in Lauchlan v Hartley [1980] Qd R 149, in which both sides of the debate in the appeal were fairly arguable. Whether or not, as Fryberg J held,[2] Ms Caltabiano's success in the appeal depended upon the Court developing the law of appropriation, the appeal did involve an important and fairly arguable question of law. It is, in my view, an appropriate case for Mr Kilburn to obtain the indemnity against his costs’ liability which is provided for in the Appeal Costs Fund Act 1973 (Qld). I would order that the second respondent be granted an indemnity certificate in respect of the appeal pursuant to s 15(1) of the Appeal Costs Fund Act 1973 (Qld).
[4] FRYBERG J: I agree with the reasons of Fraser JA.