Variety Club of Australia - Tent 56 v Cavan Pty. Ltd
[1996] QDC 286
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- Variety Club of Australia - Tent 56 v Cavan Pty. Ltd[1996] QDC 286
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Variety Club of Australia - Tent 56 v Cavan Pty. Ltd[1996] QDC 286
Variety Club of Australia - Tent 56 v Cavan Pty. Ltd[1996] QDC 286
IN THE DISTRICT COURT HELD AT BRISBANE QUEENSLAND | Appeal No. 87 of 1995 |
BETWEEN:
VARIETY CLUB OF AUSTRALIA - TENT 56 | Appellant |
AND:
CAVAN PTY. LTD | Respondent |
REASONS FOR JUDGMENT - McGILL D.C.J.
Delivered the 14th day of November 1966
This is an application for the grant of an indemnity certificate pursuant to s.15(3) of the Appeal Costs Fund Act 1973. The applicant, Cavan Pty Ltd, was the plaintiff in proceedings in the Magistrates Court at Brisbane, brought against three defendants. On 5 May 1995 judgment was given for the plaintiff against each defendant in the sum of $1,000.00, and by a notice filed 7 July 1995, a third defendant appealed. On 3 November 1995, Noud D.C.J. heard and allowed the appeal, set aside the judgment against the third defendant/appellant and ordered the applicant to pay the appellant's costs of the appeal and of the proceedings in the Magistrates Court. At that time no application was made for an indemnity certificate. That is not fatal to the application, but it is obviously desirable for the application to be made at the time when the appeal is heard: see Supreme Court Practice Direction 1 of 1982; George Comanos & Assoc. v. Fingold Resources Pty. Ltd. (No. 2) [1988] 2 Qd.R. 636; Entsch v. Smith (Court of Appeal, Writ 2709 of 1989, 15.6.92).
The applicant's claim in the Magistrates Court was brought in contract, or in the alternative, in bailment The plaintiff was the owner of a vehicle which was provided to the first defendant pursuant to an arrangement made between the plaintiff's agent and the agent of the second defendant, on the basis that the relevant hire charges would be paid by a third party, the Toyota Dealers Association. The plaintiff was not told that the vehicle was to be used by the third defendant. The vehicle was used by the first defendant, who had been appointed a media director, on a voluntary basis, by the third defendant which was apparently organising an event termed “The Variety Club Bash”, the nature of which does not appear from the material before me. It appears that the second defendant, having arranged for the vehicle to be available at the expense of the Toyota Dealers Association, made it available to the third defendant who in turn made it available to the first defendant, and the first defendant actually collected it. While he was using the vehicle it suffered damage when it rolled over near Monto.
According to the judgment of the Magistrate, the claim in contract was abandoned against the first and third defendants during argument, but there is nothing in that judgment to show that the alternative claim, in bailment, was not pressed against the third defendant. The Magistrate, after considering evidence, found that there was no contract between the plaintiff and the second defendant. With regard to the claim in bailment, the Magistrate found the vehicle was bailed to the first defendant and that he was liable in bailment but only to the extent of $1,000 for reasons I need not explain. The Magistrate found that the second defendant had held out the first defendant as its agent and was therefore vicariously liable for the damage.
The Magistrate accepted the evidence of the first defendant that his offer to provide media coverage for the event on an unpaid and voluntary basis was accepted by the third defendant and that it was the third defendant who authorised him to use the vehicle, and the evidence of the second defendant's representative that the vehicle was arranged by the second defendant for the use of the third defendant. No evidence was called on behalf of the third defendant and a finding was made that the third defendant had “authorised and delegated the first defendant to take and use the vehicle”. The Magistrate went on to find “that the first defendant was acting as an agent of the third defendant at the time when he took possession of and used the vehicle” and accordingly was their agent when the vehicle sustained damage so that the third defendant was vicariously liable for the damage caused by its agent. There is nothing in the Magistrate's reasons to indicate whether or not in arriving at this conclusion the Magistrate was accepting arguments advanced on behalf of the plaintiff.
The appeal was heard by Noud D.C.J. who concluded that there was no basis for a judgment against the appellant because the evidence referred to by the Magistrate could not, as a matter of law, support a finding of agency. In arriving at this conclusion His Honour expressly accepted the arguments for the appellant and disagreed with the submissions made by counsel for the respondent. There is in evidence before me the outline of submissions handed up by counsel for the respondent and they seek to support the conclusion that the first defendant was the third defendant's agent. An affidavit sworn by Mr Newport, who was the solicitor having the carriage of the action before the Magistrates Court, in paragraph 5 deposes to the fact that counsel for the plaintiff had said in his submissions that the evidence of Fraser and Doulton was sufficient to enable the finding of agency with consequential vicarious liability against the third defendant. In addition, in the outline liability was sought to be imposed on an alternative ground that the third defendant was a sub-bailee, but it is not apparent whether this ground was pressed at the hearing of the appeal. This again is a manifestation of the difficulty which arises when an application of this nature is made other than at the hearing of the appeal.
In the light of His Honour's reasons it seems to me correct to conclude that an appeal to a District Court on a question of law succeeded in this case, so that the discretion in s15(3) is enlivened. The next question is whether it should be exercised in favour of the applicant. It was clearly not the intention of the legislature that a certificate should be granted in the ordinary case when an appeal succeeded on a question of law, because that is a common enough situation. The function of an indemnity certificate and the system established under the Act is to enable a respondent to be substantially relieved of the cost of an appeal, and one would expect that a discretion to do this would ordinarily only be exercised in circumstances where it could be seen to be unjust that the respondent be subjected to the costs of the appeal, notwithstanding that as between the appellant and the respondent the costs more appropriately fell on the respondent.
One situation where indemnity certificates may be given is a situation where the appeal has been made necessary through no fault of the respondent, such as where the decision at first instance turned on a point not supported by the respondent, usually being one advanced by the court of its own motion. I would respectfully adopt the statement by White J. in Re Cooke (Supreme Court of Queensland, Misc 688 of 1994, 17.7.95):
“The purpose of the fund is to relieve litigants from the costs of an appeal where the tribunal below acted upon a mistaken view of the law not encouraged or urged upon it by the party seeking the relief.”
See also the statement of Moffitt J. (as he then was) in Acquilina v. Dairy Farmers Co-operative Milk Company Ltd. (No. 2) [1965] NSWR 772, at 774, adopted by the Full Court in Brisbane City Council v. Ferro Enterprises Pty. Ltd. [1976] Qd.R. 332.
Another situation which may arise is where the respondent's arguments below were in accordance with the law as it then stood, but after the decision below there was a decision in another case as a consequence of which the appeal was successful. A certificate may also be appropriate where the law is unclear or involves a novel and difficult point of statutory construction and the matter is of some general importance: George Comanos & Assoc. v. Fingold Resources Pty. Ltd. (No. 2) [1988] 2 Qd.R. 636; Jenkin v. Director of Prosecutions (Full Court Appeal 46 of 1991, 31.10.91). There may well be other situations, but I would expect that all of them would have in common that they arose from circumstances such that it was unjust for the respondent to have to bear the costs of the appeal.
There is nothing to show that the point on which the Magistrate was found on appeal to have been in error was a point which had not been contended for on behalf of the applicant before the Magistrate, and it was a point which the applicant sought to support on appeal. Ordinarily in circumstances where the error of law which was corrected on the appeal involved the acceptance of submissions advanced below by the party who was unsuccessful on the appeal that party will not receive an indemnity certificate, and so far as I can tell that was the case here.
It is then a question of whether there are any other circumstances in the present case which would justify my exercising the discretion in favour of the applicant.
Mr Newport in his affidavit suggested that the Magistrate may have been led into error by the fact the third defendant did not lead any evidence. It seems to me, with respect, that the reasons of the Magistrate suggest rather that he took comfort in making the findings he did on the basis of the evidence that he had heard from the fact that that evidence was uncontradicted. That is really a different point from the question of whether he was entitled to make the findings that he did make on the basis of the evidence that he did hear.
It does not appear to me that there were any other circumstances which could reasonably be relied upon by the applicant as rendering it unjust that the applicant bear the costs of the appeal, given the way in which the appeal was resolved. I am not persuaded therefore to exercise the discretion under s. 15(3) of the Act and the application is refused.