Innes v Electoral Commission of Queensland
[2023] QCA 88
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- Notable Unreported Decision
- Appeal Determined (QCA)
- Innes v Electoral Commission of Queensland[2023] QCA 88
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Innes v Electoral Commission of Queensland[2023] QCA 88
Innes v Electoral Commission of Queensland[2023] QCA 88
SUPREME COURT OF QUEENSLAND
CITATION: | Innes v Electoral Commission of Queensland & Anor [2023] QCA 88 |
PARTIES: | DONALD JAMES INNES (appellant) v ELECTORAL COMMISSION OF QUEENSLAND (first respondent) MARK BRYAN JAMIESON (second respondent) |
FILE NO/S: | Appeal No 8560 of 2022 SC No 5067 of 2020 |
DIVISION: | Court of Appeal |
PROCEEDING: | General Civil Appeal |
ORIGINATING COURT: | Supreme Court at Brisbane – [2022] QSC 122 (Bradley J) |
DELIVERED ON: | 5 May 2023 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 10 March 2023 |
JUDGES: | Bond JA and Gotterson AJA and Wilson J |
ORDERS: |
|
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL MATTERS – AGREEMENTS AS TO COSTS – where various costs-related orders were made against the appellant at first instance – where the relief sought by the appellant is that the decision at first instance be vacated, that the default costs certificates and consequent orders and warrants be set aside, and that the costs assessments be remitted to the Supreme Court Registry “for a jointly conducted contested assessment” – whether the provisions of Chapters 17A or 19 of the Uniform Civil Procedure Rules 1999 (“UCPR”) apply to the assessment of costs under costs orders made pursuant to the Local Government Electoral Act 2011 (Qld) (“LGEA”) or the Electoral Act 1992 (Qld) – whether a general complaint about a costs statement is sufficient to constitute a notice of objection under r 706 UCPR – whether an error in a costs assessor’s certificate was an accidental slip that could be rectified by a court on its own initiative pursuant to r 388 UCPR – whether the appellant demonstrated an error of fact or law on the part of the primary judge – whether the appeal should be dismissed PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL MATTERS – POWER TO AWARD GENERALLY – STATUTORY BASIS GENERALLY – where orders were made under s 148(1) LGEA for the appellant to pay the first and second respondents’ costs “on the standard basis” – where those orders related to a decision that was not the subject of the appeal – where the appellant nevertheless contended that the orders were inconclusive because they did not specify a process by which costs would be assessed – where the appellant contended the orders could not have contemplated assessment under the UCPR – whether the discretion to order “reasonable costs” conferred by s 148(1) LGEA ought to be constrained Elections Act 1983 (Qld), s 174 Electoral Act 1992 (Qld), s 137 Local Government Electoral Act 2011 (Qld), s 148, s 151, s 152 Uniform Civil Procedure Rules 1999 (Qld), r 3, r 209, r 211, r 371, r 388, r 678, r 702, r 705, r 706, r 709, r 742, r 748, r 800, r 819 Caltabiano v Electoral Commission of Queensland (No 1) [2010] 1 Qd R 100; [2009] QCA 182, followed Waratah Coal Pty Ltd v Nicholls & Anor [2013] QSC 68, cited |
COUNSEL: | The appellant appeared on his own behalf D M Favell for the first respondent M A Taylor for the second respondent |
SOLICITORS: | The appellant appeared on his own behalf Crown Law for the first respondent Holding Redlich for the second respondent |
- [1]BOND JA: I agree with the reasons for judgment of Gotterson AJA and with the orders proposed by his Honour.
- [2]GOTTERSON AJA: By a notice of appeal filed on 20 July 2022, the Appellant, Donald James Innes, has sought to appeal against certain orders made by a judge of the Trial Division on 22 June 2022. The respondents to the appeal are the Electoral Commission of Queensland (“ECQ”) as First Respondent and Mark Bryan Jamieson as Second Respondent. As he had been in proceedings which preceded it, Mr Innes, who is not a trained lawyer, is self-represented in this appeal.
- [3]It is necessary to outline the history of those proceedings in order to give context to the issues in the appeal. I propose to do so at the outset.
The electoral challenge
- [4]Mr Innes was an unsuccessful candidate in the mayoralty election for the Sunshine Coast Regional Council held on 28 March 2020. Mr Jamieson was the successful candidate. Mr Innes sought to dispute Mr Jamieson’s election as mayor by way of an application to the Court of Disputed Returns filed pursuant to sub s 136(1) in Part 7 Division 1 of the Local Government Electoral Act 2011 (Qld) (“LGEA”), shortly after the declaration of Mr Jamieson’s election on 17 April 2020. The parties to the application were Mr Innes, ECQ and Mr Jamieson pursuant to subs s 141(1), (2) and (3) LGEA respectively. The Attorney-General for the State of Queensland intervened. At the time of filing the application, Mr Innes deposited $400.00 with the court as required by sub s 138(2)(b)(i) LGEA.
- [5]Subsection 137(1) of the Electoral Act 1992 (Qld) (“EA”) constitutes the Supreme Court as the Court of Disputed Returns. Ryan J of the Trial Division of the Supreme Court heard the application over two days in May and one day in each of June and August 2020. Mr Innes then applied to re-open the matter. That application was dismissed on the papers on 22 September 2020 with orders that he pay ECQ’s and Mr Jamieson’s costs of the application to re-open.[1]
- [6]Two days later, her Honour made orders and delivered reasons for judgment on the substantive application. She dismissed the application and made orders for determination of the cost of it on the papers. On 21 October 2020, her Honour ordered that Mr Innes pay ECQ’s and Mr Jamieson’s costs of and incidental to the application on the standard basis.[2] No costs were sought by the intervener. She also ordered that the deposit of $400.00 be paid out in equal portions to the two respondents towards payment of the costs order.
- [7]No appeal was lodged against the orders made by Ryan J on 22 September and 21 October 2020, including the costs orders.
- [8]Thereafter until April 2021, the parties exchanged communications about the amount that each of ECQ and Mr Jamieson was prepared to accept from Mr Innes in order to satisfy their entitlements to recover costs. They failed to reach agreement in that regard.
ECQ’s costs
- [9]On the footing that Chapter 17A of the Uniform Civil Procedure Rules (“UCPR”) applied to the costs payable pursuant to the two orders made by Ryan J, Crown Law wrote to Mr Innes on 30 April 2021 enclosing ECQ’s costs statement dated that date.[3] He was notified that if he wished to object to any item in it, he must serve a notice of objection within seven days of service of the costs statement.[4]
- [10]ECQ filed an application for costs assessment on 3 June 2021.[5] The application was supported by an affidavit deposing that no objections to its costs statement had been received. Consistently with the relief sought in the application, the Registrar ordered that ECQ’s costs payable pursuant to the two orders be assessed and that Mrs L Francis be appointed[6] to conduct a default assessment of those costs.
- [11]A costs assessor’s certificate by Mrs Francis dated 16 June 2021 was filed in the Registry on 24 June 2021.[7] The certificate assessed costs at $31,189.70 comprised of professional fees of $30,127.60 and disbursements of $1,062.10. The latter included Mrs Francis’ fee of $1,050.00.
- [12]On 2 July 2021, the Registrar ordered that Mr Innes pay ECQ’s costs pursuant to the costs orders and the certificate, assessed at $31,189.70.[8] A copy of this order was sent to Mr Innes on 6 July 2021.
- [13]On the basis that the Registrar’s order was a money order as that term is defined in the Dictionary to the Supreme Court of Queensland Act 1991 (Qld), on 28 September 2021 ECQ filed an application for an enforcement warrant under Chapter 19 UCPR and for an order that Mr Innes pay ECQ’s costs of that application. A warrant for seizure and sale of property was issued by the Registrar on 29 September 2021.[9] It was directed to Mr Innes as enforcement debtor in relation to the amount outstanding to ECQ as enforcement creditor pursuant to the money order, plus interest and costs.
- [14]On the same date and by reference to the enforcement warrant, ECQ registered a writ over the title to Mr Innes’ real property. Under threat of seizure and sale of the same by the bailiff unless payment was made by 17 December 2021, Mr Innes did in fact pay ECQ $31,189.70 on that date. Thereupon, the writ was removed from the title on 4 January 2022.
Mr Jamieson’s costs
- [15]Mr Jamieson’s solicitors sent a costs statement to Mr Innes on 10 May 2021. Not having been served with a timely notice of objection, they filed an application for costs assessment on 25 June 2021. On 29 June 2021, the Registrar ordered that there be an assessment of the costs payable to Mr Jamieson pursuant to the two costs orders made by Ryan J and that Mr A Bloom be appointed to conduct a default assessment of those costs.
- [16]Mr Bloom’s certificate dated 8 July 2021 was filed on 14 July 2021.[10] The certificate assessed Mr Jamieson’s costs at $37,926.83, comprised of professional costs of $36,817.83 and outlays of $1,109.00. Included within the outlays were Mr Bloom’s fees of $1,100.00. On 30 August 2021, the Registrar ordered that Mr Innes pay the costs payable pursuant to the costs orders assessed at $37,926.83.[11]
- [17]On the same day, Mr Jamieson’s solicitors wrote to Mr Innes enclosing a copy of the order and notifying him that he was required within 14 days to complete and return a statement of financial position in Form 71, a blank of which was also enclosed.[12] The completed Form 71 not having been returned, on 22 October 2021, an application was filed on Mr Jamieson’s behalf for an enforcement hearing.[13] Pursuant to that application, the Registrar issued an enforcement hearing summons that was served on Mr Innes on 1 November 2021.
- [18]On 18 November 2021, the Registrar ordered that an enforcement hearing warrant be issued for the arrest of Mr Innes to lie in the registry pending compliance by him with other provisions of the order including completion of a statement of financial position.[14] The Registrar issued an enforcement warrant-seizure and sale of property on 21 January 2022. It was directed to Mr Innes as enforcement debtor in relation to the amount outstanding to Mr Jamieson as enforcement creditor pursuant to the money order in his favour, plus interest and costs.
- [19]On 7 February 2022, the Registrar stayed until further order enforcement of the costs payment order made in favour of Mr Jamieson on 30 August 2021.[15] By that date, Mr Innes had filed an application in the Supreme Court by which he sought to challenge enforcement of the costs orders made by Ryan J.
Mr Innes’ application to the Supreme Court
- [20]Mr Innes filed an application in the Supreme Court on 6 December 2021[16] which was ordered to be heard with a supervening application filed by him on 16 December 2021.[17] The learned primary judge who heard the applications on 10 June 2022 described the latter application as “a prolix document”. In reasons published on 22 June 2022, his Honour summarised the relief sought by it under the UCPR as follows:[18]
“[34] … Mr Innes seeks an order under r 819(1) or in the alternative r 800(1)(a) and (b), staying the ECQ enforcement proceeding. Mr Innes also seeks a declaration that Mr Jamieson is estopped from pursuing a cost assessment process by a costs assessor’s certificate filed on 16 June 2021 and that “any process” by either ECQ or Mr Jamieson from 16 June 2021 is an abuse of process.
[35] Mr Innes also seeks an order, under r [209(1)] and r 211(1)(c), requiring ECQ or its solicitor to deliver up or produce “directly relevant matters” referred to in an item in Mr Jamieson's costs statement.
[36] Mr Innes also seeks three “further or alternative orders”. Firstly, an order under r 371(2)(a), (b) and (c) settling aside the ECQ costs statement, Mrs Francis’ costs assessment and the ECQ enforcement proceeding “as against” ECQ. Secondly, an order under r 371(2)(e) and r 709(1) setting aside the Francis certificate and the ECQ money order in the interests of justice. The third further or alternative order is an order remitting the costs assessment process to a registrar for assessment under UCPR chapter 17A, part 3, division 3, and setting the matter down for directions.”
The decision at first instance
- [21]Having summarised the relief sought, the learned primary judge then identified what might be described as a fundamental proposition advanced by Mr Innes. It was that the provisions of the UCPR, particularly Chapters 17A and 19 thereof, do not apply to his Court of Disputed Returns application or the re-opening application. Accordingly, he submitted, both the ECQ’s and Mr Jamieson’s enforcement proceedings should be stayed or set aside.[19] His Honour considered, and rejected, both the proposition and the submission.[20]
- [22]With regard to the stay orders sought by Mr Innes in respect of the money orders and the enforcement warrants, the learned primary judge proceeded to outline how he proposed to determine them subject to three contentions raised by Mr Innes which he subsequently considered and rejected.
- [23]His Honour held that there was no reason to stay the ECQ money order since it had been satisfied. The ECQ enforcement warrant had no purpose to serve and it should be set aside.[21]
- [24]As to the Jamieson money order, his Honour declined to set it aside for a further reason advanced by Mr Innes, namely, that 30 days had elapsed between the making of the money order in Mr Jamieson’s favour and the service of it on him.[22] A concession was made on Mr Jamieson’s behalf that the enforcement warrant in his case overstated the sum payable by Mr Innes by $200.00 (the one half of the deposit to be paid to Mr Jamieson). His Honour regarded that as an appropriate basis for setting aside the enforcement warrant under r 819(1).[23]
- [25]Turning to Mr Innes’ three contentions, the learned primary judge considered first the contention that each of ECQ’s and Mr Jamieson’s costs statements[24] respectively failed to comply with the requirements in r 705(2). His Honour rejected that contention having reviewed each costs statement and being satisfied that each was sufficient to enable a person in Mr Innes’ position to understand the basis for the costs stated in each item, to prepare an objection to it, and to obtain advice about any offer to settle the costs by either ECQ or Mr Jamieson, or both of them.[25]
- [26]Next, the learned primary judge considered Mr Innes’ contention that he had served an objection to each costs statement in accordance with r 706. His Honour reviewed[26] a two page email sent by Mr Innes to the solicitors for ECQ and for Mr Jamieson on 26 May 2021[27] on which Mr Innes relied in this respect. He held that it was not a valid notice of objection, observing that it did not include a statement of intelligible reasons for objection, identify the issue of law or fact on which a costs assessor could make an order in his favour, or provide reasons for objection that were understandable without further explanation.[28]
- [27]The third contention addressed by the learned primary judge was that Mr Jamieson was estopped from pursuing a costs assessment process. The basis of the alleged estoppel was that the cost assessor’s certificate issued by Mrs Francis (which, of course, preceded that issued by Mr Bloom) stated (erroneously) that she had assessed “the costs of the First and Second Respondents” as against the Applicant and that “the party to be paid the costs of the assessment are the First and Second Respondents”. His Honour concluded that Mr Innes must have been relying on an equitable estoppel. He rejected the claim of estoppel.[29] He was unpersuaded that Mr Jamieson had made any representation to Mr Innes that he would not pursue his legal rights to recover any amount due to him under the costs orders, particularly since he had served a money order on Mr Innes by 30 September 2021. Nor had he done, or omitted to do, anything before that date that had induced Mr Innes to make such an assumption.[30]
- [28]There remained the error in Mrs Francis’ certificate. His Honour considered that it had resulted from an accidental slip by her and that since she was functus officio and no longer had power to modify her certificate, it should be corrected by order of the Court pursuant to r 388(2) to delete reference to the Second Respondent.[31]
- [29]With regard to the order sought by Mr Innes for production of documents, the learned primary judge noted that it concerned two items in Mr Jamieson’s costs statement, each for perusal of a document on 14 November 2020. Item 682 was for perusal of an email from Crown Law advising with respect to an email from a junior counsel and Item 684 for perusal of the email the subject of the advice. The charges for the items were $21.60 and $5.40 respectively. It was the latter email for which the order for production was sought.[32]
- [30]Citing Waratah Coal Pty Ltd v Nicholls & Anor,[33] his Honour held that the provisions of the UCPR on which Mr Innes relied for the production order, rr 209(1) and 211(1), were inapplicable to his proceeding, it not having been started by a claim or ordered to be continued as if started by a claim.[34] He further held that it was not otherwise in the interests of justice that the order be made. Significantly, Mr Innes had not duly objected to either item; nor had he advanced any argument as to why allowance of amounts for those two items was wrong in principle or otherwise in error.[35]
- [31]For those reasons, the learned primary judge resolved to make orders setting aside the ECQ enforcement warrant and the Jamieson enforcement warrant (Orders 1 and 2); otherwise dismissing Mr Innes’ applications (Order 3); and vacating the stay of enforcement of the Jamieson money order (Order 4). His Honour also ordered Mr Innes to pay ECQ’s and Mr Jamieson’s costs of the two applications heard on 10 June 2022 (Order 5) and made the order pursuant to r 388(2) to which I have referred (Order 6).
The notice of appeal
- [32]By the notice of appeal filed on 20 July 2022, Mr Innes has appealed against Orders 3, 4, 5 and 6. The principal relief sought by him is that the decision at first instance be vacated; that the two default costs certificates and consequent orders and warrants be set aside; and that the two costs assessments be remitted to the Supreme Court registry “for a jointly conducted contested assessment”.
Applications made by Mr Innes to this Court
- [33]Before turning to the grounds of appeal, I propose to resolve a number of applications filed by Mr Innes which were ordered to be dealt with at the hearing of the appeal.
- [34]Firstly, Mr Innes applied for an order that Mr Jamison not be heard on the appeal. The Court refused the application instanter with reasons to be given later.[36] The reasons may be stated shortly. Mr Jamieson was a party to the applications commenced by Mr Innes and heard by the learned primary judge. He is a respondent to the appeal initiated by Mr Innes. Mr Jamieson has the benefit of orders made at first instance and an interest in defending them on appeal. The audi alteram partem rule, a cardinal principle of the rules of natural justice, required that he be heard by this Court as he wished to be. I would add that Mr Innes did not advance any intelligible, let alone credible, argument in support of this application.
- [35]Secondly, Mr Innes applied for an order that he be provided with copies of certain documents which were referred to in some five items in the costs statements. One of them was Item 682 in Mr Jamieson’s costs statement to which I have referred. The others were two items in each of ECQ’s costs statement and Mr Jamieson’s costs statement relating to costs of drafting and producing the costs statements. Mr Innes did not advance a separate argument to support this application and no order was made in respect of it at the hearing. The hearing having concluded, there would not be any point in making such an order now.
- [36]Lastly, I mention s 152 LGEA. It provides that a notice of appeal to this Court from a Court of Disputed Returns must be filed within seven days after the date of the decision under appeal. If the learned primary judge was sitting as a Court of Disputed Returns, then this notice of appeal was filed out of time. But if he was not, the notice of appeal was timely, having been filed within the time allowed by r 748 UCPR. The point of difference is of no practical significance here. Although Mr Innes has not filed an application for it, there would be no opposition to an extension of time were it required.[37]
The issues in the appeal
- [37]Part 2 of the notice of appeal filed on 20 July 2022 headed “Grounds” consist of two parts. The first part is comprised of 28 sections (A – BB) and begins with the statement that “There are several central themes by which the whole Judgement/Decision appears to be defective and/or incompetent”. However, rather than stating the “themes” clearly and concisely as grounds of appeal, this part proceeds in the way of a lengthy submission in which errors of law and fact in specified paragraphs in the judgment at first instance are alleged. The second section of Part 2 is headed “Errores in facie Documenti”. It consists of a list of numerous alleged referencing errors, often typographical in nature, in the printed reasons for judgment at first instance. There is no explanation as to how any of those errors could ground an appeal.
- [38]Despite these anomalies, it is, nevertheless, possible to synthesize from the outline of argument and submissions, both oral and written, made by Mr Innes, the principal grounds on which he relies. It is convenient to outline and assess them separately.
1: Inconclusiveness as to the costs orders made
- [39]Mr Innes has contended that the costs orders made by Ryan J were inconclusive in that they did not specify a process by which costs would be assessed.[38] They could not have contemplated assessment under the UCPR, it is proposed, because the costs regime authorised by the LGEA is for reasonable costs.
- [40]I reject this contention. It is evident that when Ryan J ordered Mr Innes to pay the respondents’ costs of the application “on the standard basis”, her Honour meant the standard basis for which the UCPR provides. Her Honour’s reasons for the order refer to the UCPR. Moreover, the term “standard costs” has no other legal meaning.
- [41]It is true that the costs order in relation to the re-opening application did not use that term. However, given that the order did not provide otherwise, those costs were to be assessed on the standard basis pursuant to r 702(1) UCPR.
- [42]In this context, I note that although he did not appeal any of the costs orders made by Ryan J, Mr Innes argued that, in some way, the discretion conferred by s 148(1) LGEA to order an unsuccessful party to pay the reasonable costs of the other parties, ought to be constrained by historical considerations. He referred, in particular, to a provision in the antecedent Elections Act 1983 (Qld) which was repealed upon enactment of the EA. Subsection 174(1) of the former mandated that all costs, charges and expenses of and incidental to presentation of a petition to the Electoral Tribunal and to proceedings consequent thereon, be defrayed by the parties in such proportions as the presiding judge determined. Subsection 174(2) limited the total amount of costs that might be ordered to be paid by any one party as not to exceed $1,000.00.
- [43]It was suggested by Mr Innes that reasonable costs means some modest amount of that order. I am unable to discern any legal basis for inferring a legislative intent so to constrain the discretion under s 148(1). To the contrary, the repeal of s 174 and the adoption of a quite different costs regime implies that the legislature intended to consign the former to history in its entirety.
- [44]It remains to note that it was open to Ryan J to exercise the discretion under s 148(1) by making provision for costs to be paid on the standard basis for which the UCPR provides. Her Honour could have properly concluded, as she evidently did, that the respondents’ reasonable costs were those recoverable on the standard basis.
2: Inapplicability of Chapters 17A and 19 UCPR
- [45]Mr Innes has criticised the primary judge for not having reviewed the costs statement and default assessment process “through the prism” of an order for reasonable costs.[39] The criticism implicitly contends that the provisions of Chapter 17A UCPR did not apply to the assessment of costs under the costs orders that were made. The contention is advanced notwithstanding the absence of any provisions for costs assessment or enforcement in either the LGEA or the EA specific to that legislation.
- [46]This contention is misconceived. Rule 3(1) UCPR provides that unless they otherwise expressly provide, the UCPR apply to civil proceedings in the Supreme Court. In Caltabiano v Electoral Commission of Queensland (No 1),[40] Fraser JA observed that an application to the Supreme Court exercising its jurisdiction as the Court of Disputed Returns is an originating application commencing a civil proceeding in the Supreme Court.[41] I respectfully agree.
- [47]Neither of Chapters 17A or 19 contains an express provision which excludes its application to costs orders made pursuant to the EA or the LGEA. Thus, according to the terms of r 3(1), those chapters apply to the costs orders in question here. That that is so in the case of Chapter 17A is reinforced by the terms of its initiating rule, r 678(1), which provides that the chapter applies to costs payable or to be assessed under inter alia “an order of the court”, that is to say, an order in a civil proceeding in the Supreme Court, as each of the costs orders made by Ryan J was.
- [48]That Chapters 17A and 19 were applicable had the consequence that they were the correct frame of reference for evaluation by the learned primary judge of Mr Innes’ complaints about the assessment of costs and enforcement under the costs orders. It was not a situation where, as Mr Innes suggested was the case, that his Honour was to be guided instead “by the good conscience of the thing”[42] or should have regarded the Supreme Court scale of costs as inapplicable[43] and held that some unspecified lower court scale was to be applied.
3: An objection made pursuant to r 706 UCPR
- [49]Mr Innes has renewed his contention that he objected to the costs statements by his email sent on 26 May 2021. However, he has not advanced any argument to demonstrate any error on the part of the learned primary judge in his reasoning to the conclusion that that email was not compliant with r 706(2). As his Honour held, it did not state Mr Innes’ reasons for objection to any items in either costs statement.
4: A review under r 742 UCPR
- [50]Mr Innes has maintained that the application before the learned primary judge was, or included, an application for review pursuant to r 742 of the certificate of assessment of each costs assessor.[44] It will be recalled that this kind of relief was not within the summary of relief claimed at first instance. At the hearing of the appeal, the presiding judge invited Mr Innes to demonstrate to the Court where, in his two applications, he had claimed such relief.[45] He failed to do so.
5: Payment of both respondents’ costs
- [51]Mr Innes has contended that a finding ought to have been made that when he paid the $31,189.70 costs, he paid the costs of both ECG and Mr Jamieson. He submitted that he took that amount as being “a relevantly accurate amount” for both respondents’ costs “at the lowest level of standard costs, being the Magistrates Court scale”, and paid it on that basis.[46] There was no evidence before the learned primary judge to that effect. Moreover, had there been, it would have been rejected. It is incredible. Mr Innes had been served with Mr Jamieson’s money order months before he made the payment.
6: Rectification of Mrs Francis’ costs certificate
- [52]Mr Innes has contended that the costs certificate in question was Mrs Francis’ certificate. It was, therefore, hers alone to rectify and that once she had delivered her signed certificate, she was functus officio in relation to it.
- [53]That contention does not provide a logical reason why the learned primary judge could not rectify the filed costs certificate under r 388(2). Whether his Honour could or not is to be answered by reference to the terms of that rule.
- [54]Relevantly, r 388 applies if there is an error in a certificate of the court and it resulted from an accidental slip (r 388(1)). The court may at any time on its own initiative correct the error (r 388(2)).
- [55]Once the costs certificate signed by Mrs Francis was filed in the Supreme Court registry in compliance with r 737, the filed certificate became a certificate of the court amenable to correction under r 388. Here, there was evidence from Mrs Francis before the learned primary judge that the reference to the Second Respondent in the certificate was by mistake.[47] That evidence justified the rectification of the certificate made by his Honour.
Disposition of the appeal
- [56]It will be evident from the foregoing that Mr Innes has not established an error of law or of fact on the part of the learned primary judge. He has not established an entitlement to all or any of the relief claimed in his notice of appeal. His appeal must therefore be dismissed.
- [57]I would note at this point that a question arose during the hearing as to whether the learned primary judge was himself sitting as a court of disputed returns. Had that been the case, then, by virtue of s 151 LGEA, an appeal to this Court would lie only on a question of law. But had he not been, then the appeal would be by way of hearing on the material before the court at first instance and not limited to questions of law. This Court did not have the benefit of full argument on the question. In any event, it is unnecessary to answer it in order to dispose of the appeal. That is so because Mr Innes has not established any error of law or of fact that would entitle him to the relief he claimed.
Orders
- [58]I would propose the following orders:
- Appeal dismissed.
- The Appellant is to pay the Respondents’ costs of and incidental to the appeal on the standard basis.
- [59]WILSON J: I agree with the reasons and proposed orders of Gotterson AJA.
Footnotes
[1] AB 20.
[2] AB 86.
[3] Pursuant to r 705.
[4] Pursuant to r 706.
[5] Pursuant to r 708(1).
[6] Pursuant to r 713.
[7] AB 134.
[8] AB 113.
[9] Pursuant to r 828(1).
[10] AB 135.
[11] AB 114.
[12] Pursuant to r 809(1).
[13] Pursuant to r 808(1).
[14] AB 115 – 116, pursuant to r 816(1).
[15] AB 120.
[16] AB 136 – 141.
[17] AB 195 – 198; AB 121 – 122.
[18] Innes v The Electoral Commission of Queensland & Ors [2022] QSC 122 at [34] – [36] (“Reasons”).
[19] Reasons [38].
[20] Reasons [38] – [44].
[21] Reasons [49].
[22] Reasons [53].
[23] Reasons [55].
[24] AB 1132 – 1217 and AB 1257 – 1340.
[25] Reasons [57] – [63].
[26] Reasons [68] – [78].
[27] AB 689 – 690.
[28] Reasons [78].
[29] Reasons [82] – [95].
[30] Reasons [92].
[31] Reasons [96].
[32] Reasons [103], [104].
[33] [2013] QSC 68 per Applegarth J at [133].
[34] Reasons [98] – [101].
[35] Reasons [106].
[36] Transcript 1 – 7 ll23 – 27.
[37] First Respondent’s Outline para 23; Second Respondent’s Outline footnote 8. Each respondent assumed that this Court could extend time. Neither contended to the contrary.
[38] Transcript 1 – 24 ll38 – 24; 1 – 27 ll36 – 40.
[39] Transcript 1 – 19 ll15 – 17.
[40] [2009] QCA 182; [2010] 1 Qd R 100.
[41] At [79]; Muir JA and Fryberg J agreeing generally at [27] and [124] respectively.
[42] Transcript 1 – 37 ll21 – 23.
[43] Ibid ll40 – 44.
[44] Transcript 1 – 54 ll41 – 44.
[45] Transcript 1 – 56 ll10 – 28.
[46] Transcript 1 – 31 ll21 – 25.
[47] Affidavit sworn 13 April 2022 para 7; AB 1230.