Romano v Brisbane City Football Club (No 2)
[2018] QDC 215
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- Unreported Judgment
- Romano v Brisbane City Football Club (No 2)[2018] QDC 215
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Romano v Brisbane City Football Club (No 2)[2018] QDC 215
Romano v Brisbane City Football Club (No 2)[2018] QDC 215
DISTRICT COURT OF QUEENSLAND
CITATION: | Romano v Brisbane City Football Club & Anor (No 2) [2018] QDC 215 |
PARTIES: | DANIELLO ROMANO (applicant) and BRISBANE CITY FOOTBALL CLUB (ABN 57 009 971 500) (first respondent) BRISBANE CITY COUNCIL (second respondent) |
FILE NO/S: | 892 of 2017 |
DIVISION: | Appellate |
PROCEEDING: | Appeal – Further Order |
ORIGINATING COURT: | Magistrates Court, Brisbane |
DELIVERED ON: | 31 October 2018 |
DELIVERED AT: | Cairns |
HEARING DATE: | On the papers |
JUDGE: | Fantin DCJ |
ORDER: |
|
CATCHWORDS: | CIVIL LAW – APPEAL – PROCEDURE – QUEENSLAND – APPEAL COSTS FUND – POWER TO GRANT INDEMNITY CERTIFICATE – where the appellant successfully appealed a decision of the Magistrates Court – where the respondents applied for an indemnity certificate pursuant to s 15(2) of the Appeal Costs Fund Act 1973 (Qld) – where the appellant applied for an indemnity certificate pursuant to s 17 of the Appeal Costs Fund Act 1973 (Qld) – where the appeal turned upon the Magistrate’s error of law – whether indemnity certificates ought to be granted CIVIL LAW – APPEAL – PROCEDURE – QUEENSLAND – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – where the appellant successfully appealed a decision of the Magistrates Court – whether costs of the appeal should follow the event – whether the costs of the Magistrates Court proceeding should be costs in the cause Legislation Appeal Costs Fund Act 1973 (Qld) ss 15, 17 Personal Injuries Proceedings Act 2002 (Qld) ss 4, 43, 44 Uniform Civil Procedure Rules 1999 (Qld) r 27 Cases Brisbane City Council v Ferro Enterprises Pty Ltd [1976] Qd R 332 Lauchlan v Hartley [1980] Qd R 149 Reeve v Fowler [1965] NSWR 110 Richards v Faulls Pty Ltd [1971] WAR 129 Romano v Brisbane City Football Club & Anor [2018] QDC 67 Vella v Larson [1982] Qd R 298 Zappulla v Perkins (No 2) [1978] Qd R 401 |
COUNSEL: | S Di Carlo for the Appellant P D Lane for the First and Second Respondent |
SOLICITORS: | Grasso Searles Romano Lawyers for the Appellant Hall & Wilcox for the First Respondent Barry Nilsson Lawyers for the Second Respondent |
Background
- [1]On 13 April 2018 I allowed the appeal in this matter, granted leave to the appellant to start a proceeding pursuant to s 43(1) of the Personal Injuries Proceedings Act 2002 (Qld) (PIPA), such leave being granted nunc pro tunc and with effect from 13 February 2017, and granted leave to the parties to file and serve further written submissions with respect to costs.
- [2]I have received written submissions from all parties. The appellant and the respondents each seek indemnity certificates under the Appeal Costs Fund Act 1973 (the Act). They also seek different orders with respect to the costs of the application before the Magistrate.
- [3]For the reasons that follow, I am satisfied that the respondents should pay the appellant’s costs of the appeal, the respondents should be granted an indemnity certificate, the costs of the application in the Magistrates Court should be costs in the cause and the appellant should not be granted an indemnity certificate.
- [4]The facts of the appeal, and the reasons for my earlier decision, are set out in the Reasons for Judgment.[1] It is unnecessary to repeat them.
- [5]I found that the learned Magistrate erred in law and in fact in failing to take into account relevant considerations, taking into account irrelevant considerations, finding that urgency for the application had not been demonstrated and giving determinative weight to whether there was a reasonable excuse for the delay and non-compliance with PIPA.
Respondents’ application for indemnity certificate
- [6]The respondents apply pursuant to s 15(2) of the Appeal Costs Fund Act 1973 for an indemnity certificate.
- [7]Section 15(2) of the Act provides:
- “(2)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.”
- [8]In support of their application, the respondents correctly say that the appeal succeeded on a question of law. That means that the court’s discretion to grant or to withhold the grant of a certificate has been enlivened.
- [9]The grant of a certificate is within the court’s discretion, but it is not routine.[2] It is insufficient, to justify an exercise of discretion in favour of an applicant, merely to show that the appeal has succeeded on a question of law.[3] The conduct of the applicant in the court below and the applicant’s responsibility, if any, for the erroneous decision of law in question is relevant to the exercise of discretion.[4] Conversely, the fact that the applicant’s submissions to the trial judge (in this case, Magistrate) led to the order which has been reversed does not of itself compel an exercise of discretion adverse to the applicant.[5]
- [10]The purpose of indemnifying a respondent for costs has been said to relieve a party who becomes liable for costs because of an error of law on the part of the court. I must therefore consider whether the error of the Magistrate was due to the conduct of, or a decision taken by, the respondents.
- [11]In the proceedings before the Magistrate, the appellant did not serve the respondents with the application at least three business days before the hearing date, as required by r 27(1) UCPR. As a result, the first respondent did not appear. The second respondent did appear but was not able to respond in any meaningful way to the application. It did not adduce evidence.
- [12]This is not a case where the Magistrate was led into error by the arguments of the respondents’ legal representatives, in a way that would disentitle them to an indemnity from the Appeal Costs Fund. The Magistrate’s error occurred through no fault on the part of the respondents. As such, it is appropriate that they be granted an indemnity certificate.
- [13]I would grant the respondents’ application for a certificate.
Appellant’s application for an indemnity certificate
- [14]The appellant applies pursuant to s 17 of the Act for an indemnity certificate.
- [15]Section 17 provides:
“Where—
- (a)there is an appeal against the decision of a Magistrates Court to the Supreme Court or the District Court on a question of law; and
- (b)the respondent to the appeal did not appear in the proceedings before the Magistrates Court and does not appear on the appeal; and
- (c)the appeal succeeds but the Supreme Court or the District Court, as the case may be, refuses to order the respondent to pay the appellant’s costs of the appeal;
the Supreme Court or the District Court may upon application made in that behalf, grant to any appellant in the appeal an indemnity certificate in respect of the appeal.”
- [16]In the Magistrates Court proceeding, one respondent appeared.
- [17]In the appeal, both respondents appeared and actively opposed the appeal.
- [18]At least one of the necessary preconditions to enlivening the court’s discretion to grant an application under s 17 of the Act, that the respondent did not appear in the proceedings before the Magistrates Court and does not appear on the appeal (s 17(b)), is not satisfied.
- [19]The appellant is not entitled to make an application under s 17 of the Act.
- [20]The appellant’s application for a certificate must be refused.
Costs of the application before the Magistrate
- [21]The Magistrate ordered that the appellant pay the respondents’ costs of the application in the Magistrates Court.
- [22]The Notice of Appeal sought an order that the appellant be granted the costs of the hearing at first instance or in the alternative, the costs of that hearing be costs in the cause.
- [23]The respondents submit that the Magistrate’s costs order should not be disturbed for three reasons. First, the originating application in the Magistrates Court only ever sought an order that the costs of the application be costs in the cause. Second, the appellant’s application sought an indulgence of the court, was necessitated by the appellant’s conduct and was left until the last minute. Third, the appellant’s application could have been avoided by the appellant inviting the respondents to allow the appellant to start the proceeding despite noncompliance with the PIPA procedures, which did not occur: s 44(2)(b) and 44(6).
- [24]Alternatively, the respondents submit that the costs of the application should be the respondents’ costs in the proceeding.
- [25]The appellant relied upon the main purpose of the PIPA in s 4, to assist the ongoing affordability of insurance through appropriate and sustainable awards of damages for personal injuries, to submit that the costs of the application be costs in the cause. That purpose is to be achieved, relevantly, by providing a procedure for the speedy resolution of claims, promoting settlement of claims at an early stage wherever possible and ensuring that a person may not start a proceeding in a court based on a claim without being fully prepared for resolution of the claim by settlement or trial: s 4(2)(a), (b) and (c).
- [26]I take into account those purposes and the principles relevant to the exercise of the discretion under s 43, which are set out at paragraph [17] of my earlier Reasons for Judgment. The Magistrate ought to have heard and granted the application notwithstanding short service, pursuant to UCPR r 27(3), where the limitation period would expire on the day of hearing of the application.
- [27]In the circumstances I am satisfied that the costs of the application in the Magistrates Court should be costs in the cause.
Costs of the appeal
- [28]The appellant seeks an order that the respondents pay the appellant’s costs of the appeal.
- [29]Given the established principles with respect to s 43 PIPA (referred to in my Reasons for Judgment), the respondents’ case on appeal was arguable but not strong. They made a number of submissions which were rejected.
- [30]Before filing the appeal the appellant invited the respondents to consent to an agreement under PIPA s 44 to the filing of proceedings, or to agree not to plead the statute of limitations by way of defence, in order to avoid the costs of appeal. The proposal was rejected.
- [31]There is no reason why the appellant should not have its costs of the appeal.
Footnotes
[1] Romano v Brisbane City Football Club & Anor [2018] QDC 067 (17/892) Fantin DCJ 13 April 2018.
[2] Richards v Faulls Pty Ltd [1971] WAR 129.
[3] Richards v Faulls Pty Ltd, supra, at 138; Reeve v Fowler [1965] NSWR 110 at 111.
[4] Brisbane City Council v Ferro Enterprises Pty Ltd [1976] Qd R 332; Zappulla v Perkins (No 2) [1978] Qd R 401; Vella v Larson [1982] Qd R 298.
[5] Lauchlan v Hartley [1980] Qd R 149.