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Crisp v Qld Law Group – A New Direction Pty Ltd (No. 2) QDC 77
DISTRICT COURT OF QUEENSLAND
Crisp v Qld Law Group – A New Direction Pty Ltd (No. 2)  QDC 77
QLD Law Group – A New Direction Pty Ltd
1st May 2018
Kent QC DCJ
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW THE EVENT – OTHER PARTICULAR CASES AND MATTERS – where the appellant successfully appealed a decision of the Magistrates Court – where the appellant seeks an order for costs on the basis that costs should follow the event – where the respondent resists a costs order on the basis that the successful submission was not contained in the appellant’s written outline of argument – where the successful submission was advanced during oral argument – where the successful submission was raised in argument before the Magistrate – whether the respondent should pay the appellant’s costs
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – APPEALS AS TO COSTS – WHERE PARTY ENTITLED TO COSTS OF PROCEEDINGS OUT OF FUND OR PROPERTY – where the applicant successfully appealed a decision of the Magistrates Court – where the respondent seeks an indemnity certificate pursuant to s 15(2) of the Appeal Costs Fund Act 1973 (Qld) – where the appeal concerned a question of law – where the grant of an indemnity certificate is discretionary – whether the discretion should be exercised in favour of the respondent
CC Wilson for the appellant
MJ Lazinski for the respondent
Byrne and Lovel Lawyers for the appellant
Qld Law Group for the respondent
- In this matter I previously delivered judgment in the appeal on 23 March 2018 and indicated that, subject to any further submissions, the respondent would be ordered to pay the applicant’s costs of the hearing in the Magistrates Court on 16 June 2017 and the costs of this appeal.
- Further submissions were made by the parties. The applicant seeks the order for costs which I foreshadowed, on the basis that costs should follow the event. The respondent resists this. It is submitted that the arguments as to construction which were successful in the judgment were not contained in the appellant’s outline of argument and were not dealt with by the Magistrate below. Rather, the successful submission was advanced during oral arguments at the hearing of the appeal.
- It is correct that the applicant’s written outline of argument advanced different propositions which were not persisted with on the hearing of the appeal. Thus it is submitted that the applicant should not recover her costs of the appeal, alternatively the respondent be granted an indemnity certificate pursuant to s 15(2) of the Appeal Costs Fund Act 1973 (Qld). In reply, the applicant submits that the vital point, the proper construction of s 335(5) of the Legal Profession Act 2007 (Qld), was ventilated before the Magistrate. This was noted at paragraph  of my reasons for decision and footnote 10.
- Thus, the applicant submits that the central question was not a new point not taken below nor was it a point that was not anticipated in the notice of appeal. When it was raised at the hearing of the appeal, there was no application by the respondent to adjourn the hearing of the appeal or file supplementary written submissions after oral argument.
- In my view the matter was canvased before the Magistrate. Even though, as previously noted, the Magistrate did not appear to deal with the issue in her reasons, it is implicit that the successful point, which had been raised in argument, was rejected, wrongly as it has been found, by the Magistrate. The respondents did not disavow any part of the Magistrates reasoning either at the time of hearing the application before the Magistrate or on appeal, and their resistance to the appeal has been unsuccessful.
- Therefore, in my view, it is a case where costs should follow the event.
- As to the question of a certificate under section 15 of the Appeal Costs Fund Act 1973 (Qld) the section provides:
“15 Grant of indemnity certificate
- (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.”
- Although the point upon which the applicant has succeeded is a question of law, in my view, it is not an appropriate case for the issue of a certificate. In GAJ v RAJ the question of the discretion to be exercised pursuant to s 15 was analysed. The court observed as follows:
“ The respondent has not advanced any factors which would incline this court to exercise its discretion in favour of the grant of a certificate if it be accepted that the basis on which the appeal was successful involved a question of law within the meaning of s 15. In Vella v Larson Macrossan J, with whom Wanstall CJ and Dunn J agreed, noted that the scope of the discretion to grant a certificate may be deduced from the threshold requirement that the reversal on appeal of the decision below must be on a question of law. His Honour then said:
‘This feature enabled it to be deduced that the object of our Act and its equivalents was limited to relieving against a particular and limited type of misfortune in litigation.’ (See  Qd R 298 at 300).
His Honour continued:
‘Moffitt J in Acquilina v. Dairy Farmers Milk Co.  NSWR 772, at 774… said of the part of the legislation under consideration that it had ‘as its purpose the relief of a party who incurs or becomes liable for costs not through his own decision or conduct but because of some error of law of the tribunal.’ There does not appear to be any object of relieving against the ordinary risk of expense due to loss in litigation. It has been said by Maguire J. in Palaky v. Utah Construction and Engineering Pty. Ltd.  1 NSWR 689 at 695… that the objects and purposes of the legislation ‘do not extend to the promotion of litigation; nor is it an Act to provide aid or legal assistance in the broad sense at the expense of the fund.’
 Macrossan J warned,
‘Not only is the subvention which the Act provides for restricted to cases where an appeal succeeds on a question of law, but since then (and, indeed, only then) the discretion applies, it may readily be inferred that even in such cases the grant of a certificate is not meant to be automatic. … To obtain a certificate the obligation is upon the applicant to show some ground calling for the exercise of the discretion in his favour and he does not do this merely by showing that the appeal has succeeded on a question of law …’”
- In this case, in my view, as in GAJ, the respondent has not shown a ground for the exercise of the discretion in its favour. It conducted the case and made submissions along the lines found by the Magistrate, namely that the time limit was a bar to the application; a conclusion which has been overturned in this Court. As in GAJ, in my view, there are no features in the way the application below was conducted nor the role of the Magistrate nor in the nature of the error identified which lead to the successful appeal outcome for the respondent (the applicant for the certificate) which enlivens the discretion to grant an indemnity certificate. Accordingly, the application for an indemnity certificate should be refused.
- The orders therefore are:
- The respondent pay the applicant’s cost of and incidental to both the application before the Magistrate on 16 June 2017 and on this appeal on the standard basis;
- Refuse the respondent’s application for an indemnity certificate pursuant to s 15 of the Appeal Costs Fund Act 1973 (Qld).
  QCA 190.
- Published Case Name:
Crisp v Qld Law Group – A New Direction Pty Ltd (No. 2)
- Shortened Case Name:
Crisp v Qld Law Group – A New Direction Pty Ltd (No. 2)
 QDC 77
01 May 2018