Lennox v The Board of Professional Engineers of Queensland (No. 3)
[2009] QDC 282
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- Unreported Judgment
- Lennox v The Board of Professional Engineers of Queensland (No. 3)[2009] QDC 282
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Lennox v The Board of Professional Engineers of Queensland (No. 3)[2009] QDC 282
Lennox v The Board of Professional Engineers of Queensland (No. 3)[2009] QDC 282
DISTRICT COURT OF QUEENSLAND
CITATION: | Lennox v The Board of Professional Engineers of Queensland (No. 3) [2009] QDC 282 |
PARTIES: | PETER LENNOX (Appellant) v THE BOARD OF PROFESSIONAL ENGINEERS OF QUEENSLAND (Respondent) |
FILE NO/S: | Cairns 175 of 2008 Cairns 228 of 2008 |
DIVISION: | Appellate |
PROCEEDING: | Respondent’s applications for indemnity certificates under the Appeal Costs Fund Act 1973 |
ORIGINATING COURT: | Commercial and Consumer Tribunal |
DELIVERED ON: | 28 August 2009 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 26 August 2009 (in Brisbane) |
JUDGE: | Robin QC DCJ |
ORDER: | Indemnity certificates granted, conditionally |
CATCHWORDS: | Appeal Costs Fund Act 1973 s 15, Supreme Court of Queensland Act 1991 s 80 – granting of indemnity certificates made conditional upon applicant’s giving undertakings not to resist review of costs orders in the relevant appeals in light of its having recourse to the Appeal Costs Fund. |
SOLICITORS: | Holding Redlich for applicants (respondent in the appeals) |
- [1]The Board of Professional Engineers of Queensland was the unsuccessful respondent in two appeals against determinations of the Commercial and Consumer Tribunal in two separate disciplinary proceedings prosecuted against Mr Lennox. Each appeal required the court’s leave to be pursued, leave which could be granted only for an appeal based on error of law or excess of jurisdiction by the Tribunal. Reasons for leave to appeal being granted in each proceeding and the appeal allowed may be found at [2009] QDC 99 and [2009] QDC 100; in the former, the Tribunal was found to have denied Mr Lennox natural justice (and thereby fallen into an error of law) by finding against him based on a case which the Board had not made and which he had no occasion to meet. In the latter (in which Mr Lennox failed in his challenge to the procedure followed in the vormulation of a “disciplinary ground” against him) I was of the view (paragraph [25]) that an “error of law” on a similar basis had occurred where the Tribunal failed to offer the parties, Mr Lennox in particular, an opportunity to submit for an outcome whereby some of the Board’s allegations having failed, less than full costs should have been awarded in its favour. Before it was known that both parties had failed in part in the result in the Tribunal, they had both indicated in submissions that they wanted costs.
- [2]The applications are based on s 15(2) of the Appeal Costs Fund Act 1973:
“Where an appeal against the decision of a court to the District Court on a question of law succeeds, the District Court may, upon application made in that behalf, grant to any respondent to the appeal an indemnity certificate in respect of the appeal.”
- [3]One would not ordinarily classify the Tribunal as a court, but the definition of “court” in s 4 brings it in, the District Court in this context being a “superior court” to which an appeal is made. See Bieto v Triline Australia Pty Ltd (No. 2) [2003] QDC 307 at [45] ff. If it matters, ‘appeal’ is widely defined in s 4. A consequence is that certificates under the Act are available in a wide range of circumstances. See R v Judge McGuire [1986] 1 Qd R 61; R v Webster [1987] 1 Qd R 45; Re Cooke [1997] 1 Qd R 15 and Queensland Building Services Authority v The Proprietors of “The View” [1999] QCA 428 (following the allowing of an appeal as recorded at [1998] QCA 401). There are cases in which the Appeal Court lacked power to grant a certificate under the Act, as in R v Foggo [1989] 2 Qd R 49 and Land and Resources Tribunal v Schmidt [2005] QCA 195 (see [29]).
- [4]A particular limitation noted in the present applicant’s written submissions is created by s 21(3):
“An indemnity certificate shall not be granted in favour of the Crown.”
There is no guidance in the Appeal Costs Fund Act, the Acts Interpretation Act 1954 or other legislation such as the Crown Proceedings Act 1980 as to what ‘the Crown’ might comprehend. The Professional Engineers Act 2002, which establishes the Board as a ‘statutory body’ (s 104) which is to act independently, impartially and in the public interest (s 79) and is self-funding (being reliant on registration fees paid by professional engineers in the State) may provide the answer here in s 78:
“78 Board’s Relationship with the State
The Board does not represent the State.”
The 2002 Act has many provisions about the Board’s relations with the Minister in relation to matters that may be referred, advice sought or given out.
I have found the following discussion on Hogg & Monahan, Liability of the Crown (3rd) at 11 helpful:
“1.4 Meaning of the Crown
- (a)Executive branch of government
What is meant by “the Crown”? “The crown as an object is a piece of jewelled headgear under guard in the Tower of London. But it symbolises the powers of government which were formerly wielded by the wearer of the crown.” Although we now have a “constitutional monarchy”, in which the role of the Queen (and of her representatives in the Commonwealth countries) has become entirely formal, the term ‘the Crown’ has persisted as the name for the executive branch (but not the legislative branch) of the government. Executive power is actually exercised by the Prime Minister and other Ministers who direct the work of the civil servants in the various government departments. This structure is accurately and commonly described as ‘the government’ or ‘the administration’ or ‘the executive’, but lawyers usually use the term ‘the Crown’. Thus, lawyers speak of the Crown expropriating a house, of the Crown being sued for breach of contract, or of the Crown being bound by statute.
- (b)Crown agency
The Crown includes the departments of government that are headed by a Minister. It is the control of the Minister that provides the link to the Crown. Municipal bodies, school boards, universities, hospitals, regulatory agencies, administrative tribunals and public corporations, even if they are performing ‘governmental’ functions, are not agents of the Crown, unless they are controlled by a Minister or expressly declared by statute to be an agent of the Crown. A question often arises as to whether a public body is or is not an agent of the Crown. The answer will determine whether the public body can render the Crown liable in tort, or bind the Crown by contract, or take advantage of the various privilege and immunities of the Crown.”
(An interesting reflection of the relevant considerations may be found in the former District Court Rules:
“Court Fees – Crown
371 Notwithstanding anything to the contrary in these Rules contained, in any proceedings in which Her Majesty, or any person on behalf of the Crown, or any Department, corporation, or instrumentality whose expenditure is appropriate or drawn from Consolidated Revenue, or any person on behalf of any such Department, corporation, or instrumentality, is a party, no fees of Court need be prepaid on behalf of her Majesty, or the said Department, corporation or instrumentality, or person, but such fees may nevertheless be recoverable from the opposite party with costs, if judgment is given against him.”)
The Board cannot be regarded as the Crown. It operates and is funded independently (the court understands effectively at the expense of professional engineers in the State).
- [5]Section 21 emphasises that the grant or refusal of an indemnity certificate is a matter of discretion for the court invited to grant one (“no appeal lies”). It is salutary to note several reported cases in which indemnity certificates were refused, such as Zappulla v Perkins (No. 2) [1978] Qd R 401, Queensland Fish Board v Bunney [1979] Qd R 301; Lauchlan v Hartley [1980] Qd R 149; Vella v Larson [1982] Qd R 298. Where the tribunal at first instance was led into the relevant error by the unsuccessful respondent in the ensuing appeal, the discretion may well not be exercised favourably, although Lauchlan v Hartley makes it clear that presenting a view which is fairly arguable (although rejected on appeal) does not have any automatic consequence against the party seeking a certificate; it was also recognised that different positions may legitimately be taken as to the way in which the law ought to be applied to particular fact situations. It is relevant to consider to what extent, if any, a tribunal’s error was due to the conduct of or a decision taken by the applicant for an indemnity certificate.
- [6]It is interesting to note from Vella v Larson that legislation like the Appeal Costs Fund Act does not appear to embody “any object of relieving against the ordinary risk of expense due to loss in litigation”. The Act is not there “to provide aid or legal assistance in the broad sense at the expense of the fund” (300), “the grant of a certificate is not meant to be automatic … an application under the Act is not routine” (301). (Such considerations led to my requiring the filing of formal applications to be supported by written submissions (attendance at the “hearing” not being required).)
- [7]In Vella v Larson it was considered over-technical to automatically characterise a question of the sufficiency of evidence as one of law. The Full Court may have been influenced by the consideration noted at 299 that:
“If this court decides to grant that certificate it has no further discretion to exercise over its scope, since s 16 of the Act prescribes that subject to the Act, the certificate, if granted, entitles the respondents to be paid from the fund in an amount equal to the appellant’s costs of the appeal to this court together with the appellant’s costs of the new trial as well as the plaintiffs’ own costs of the appeal and of the trial. Section 16 does impose and leaves to be further prescribed certain upper limits upon the amount payable from the fund to any one respondent, but it is not necessary for us to be concerned with that aspect on this application.”
- [8]I confess to some unease as to the way in which the indemnity certificates now sought may work out, given the refinement attempted to be achieved by the court’s orders made in the two proceedings on 8 May 2009, when the court had no inkling that the Board might be seeking indemnity certificates. It had ample opportunity before that date to inform the court of any intention to seek an indemnity certificate, an exercise in which delay is not to be encouraged: Entsch v Smith [1992] QCA 143. The unease referred to relates to the potential I fear may exist for the Board to be unfairly advantaged as against Mr Lennox, maybe getting full costs (when he gets part only of his) maybe having some special costs protection in respect of future instalments of the 175 of 2008 saga in the Tribunal. It may be that these aspects can be dealt with under the liberty to apply reserved in the orders of 8 May 2009 which were:
“Friday 08 May 2009 – Lennox v Board of Professional Engineers Cairns 175/08 – Appeal – Judgment
Appearances: no appearances
Orders:
- Leave to appeal granted.
- Appeal allowed.
- The Tribunal’s decision dated 30 June 2008 is set aside.
- The matter be remitted to the Commercial and Consumer Tribunal for hearing before a differently constituted Tribunal.
- So far as these proceedings in the District Court are concerned, the Respondent Board pay the Appellant’s costs of the application and appeal, to be assessed if not agreed (save any that the Appellant may have to bear consistently with the decision in Tamawood Limited v Paans [2005] 2 Qd R 101 under s 101(8) of the Commercial and Consumer Tribunal Act.
Friday 08 May 2008 – Lennox v Board of Professional Engineers – Cairns 228/08 – Appeal – Judgment
Appearances: no appearances
Orders:
- Leave to appeal granted only in respect of the Tribunal’s costs order.
- Appeal allowed only in respect of the Tribunal’s costs order.
- That costs order is set aside.
- The Appellant pay the Respondent Board half of its costs referred to in the Tribunal’s order.
- The Respondent Board pay the Appellant half of his costs of this appeal, as assessed or agreed.
- Liberty to apply.”
- [9]I do not think this is the occasion for attempting refinements to the straightforward procedure the Act sets up, or even of extracting undertakings (perhaps regarding the scope of the disciplinary proceeding if it is pursued further in the Tribunal) as a condition of granting either of the indemnity certificates. The reasons already published identify the errors of law of the Tribunal in each case and exonerate the Board from any responsibility for their arising. The determination of the court in each application is that there ought to be an indemnity certificate.
- [10]So far as I am aware, there is no Practice Direction or anything similar of relevance corresponding with Practice Direction No. 2 of 1982 (see [1982] Qd R 583) as considered in Entsch v Smith. The Practice Direction required that an application for an indemnity certificate under s 15 be made at or before the conclusion of oral argument before the Full Court, apparently in the interests of convenience and efficiency. The Full Court expressed reluctance to deny a certificate on the basis of delay not satisfactorily explained, but did refuse to grant a certificate on the basis that the substantial questions in the appeal were ones of fact (rather than law) and that the applicant had led the trial judge into error by evidence which the applicant for a certificate had adduced about a procedure in the Family Court.
- [11]What has happened in the present proceedings serves to show that the approach enshrined in the Practice Direction of 1982 has the advantage of the court being better placed to do what is right or just in respect of costs as between the parties; this would not be the first case in which it would have been pertinent for the court to know that the unsuccessful respondent in an “appeal” from a “court” would have costs ordered to be paid to the successful party and its own costs covered at the expense of the Fund.
- [12]The court has a wide power under s 80 of the Supreme Court of Queensland Act 1991 to impose conditions in making orders or doing “another thing”. The orders of 8 May 2009 were made on the assumption that the costs generated by the errors of law made in the Tribunal would have to be borne by the parties without contribution from any other source. An appropriate condition is that the granting of indemnity certificates be dependent upon the filing of undertakings by the Board not to oppose Mr Lennox availing himself of the liberty to apply under the orders determining the appeals to have costs aspects reviewed on the basis of the Board obtaining an indemnity certificate. My associate has communicated to the solicitors, the Board’s in particular, that undertakings ought to be filed in expectation of indemnity certificates being granted, essentially in the forms proposed by the Board, although amendments have been made by me to correct the date and summary description of the orders resolving the appeals in each case. The corrected drafts will be signed by me upon confirmation that suitable undertakings have been filed.