GAJ v RAJ [2011] QCA 190

SUPREME COURT OF QUEENSLAND

CITATION: GAJ v RAJ [2011] QCA 190

PARTIES: GAJ (appellant) v RAJ (respondent)

FILE NO/S: Appeal No 7019 of 2010 / DC No 609 of 2008

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal – Further Orders

ORIGINATING COURT: Supreme Court at Brisbane

DELIVERED ON: 9 August 2011

DELIVERED AT: Brisbane

HEARING DATE: Heard on the papers

JUDGES: Holmes and White JJA and McMurdo J / Judgment of the Court

FURTHER ORDERS: **1.**The respondent pay the appellant’s costs of and incidental to the appeal on the standard basis. / **2.**Refuse the respondent’s application for an indemnity certificate pursuant to s 15 of the Appeal Costs Fund Act 1973 (Qld).

CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – APPEAL COSTS FUND – POWER TO GRANT INDEMNITY CERTIFICATE – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where the appellant was successful on appeal in challenging the primary judge’s property adjustment orders – where the appellant seeks an order that the respondent pay costs of the appeal – where the respondent seeks an indemnity certificate pursuant to s 15 Appeal Costs Fund Act 1974 (Qld) – whether an indemnity certificate should be granted / Appeal Costs Fund Act 1973 (Qld), s 15 / Property Law Act 1974 (Qld), s 19, s 341 / Supreme Court of Queensland Act 1991 (Qld), s 69(1) / GAJ v RAJ [2011] QCA 65, cited / KQ v HAE [2007] 2 Qd R 32; [2006] QCA 489, cited / Lauchlan v Hartley [1980] Qd R 149, cited / R v Moti [2010] QCA 241, cited / Vella v Larson [1982] Qd R 298, cited

COUNSEL: J Brasch, with B Thiele, for the appellant / C Carew for the respondent

SOLICITORS: Morton & Morton for the appellant / James & Co Lawyers for the respondent

1. THE COURT: The appeal in this matter was allowed on 12 April 2011¹ with the parties to provide written submissions on costs.

2. The appellant seeks an order that the respondent pay her costs of the appeal to be assessed on the standard basis. The respondent seeks an indemnity certificate pursuant to s 15 of the Appeal Costs Fund Act 1973 (Qld).²

3. In her written submissions the appellant states that an offer to settle the appeal prior to the filing of the notice of appeal was made by her, was not accepted, and was withdrawn after a week. She does not seek to rely on that matter, it would appear, in the disposition of her application for costs.

4. The respondent does not contend that the appellant should not have her costs of the appeal. The appeal to this court is brought pursuant to s 69(1) of the Supreme Court of Queensland Act 1991 (Qld) and is thus not a proceeding under Part 19 of the Property Law Act 1974 (Qld). Accordingly, s 341 of that Act which limits the power to award costs, does not apply.³ The appellant, having been successful on the appeal, is entitled to an order for the costs of the appeal.

5. The respondent contends that the appeal outcome falls within s 15 of the Appeal Costs Fund Act. It provides, relevantly:

“(1)Where an appeal against the decision of a court –

(a)to the Supreme Court;

…

on a question of law succeeds, the Supreme Court may, upon application made in that behalf, grant to any respondent to the appeal an indemnity certificate in respect of the appeal.”

6. The respondent submits that the appeal succeeded on a point of law insofar as the trial judge erred in the exercise of his discretion by placing too much weight on the respondent’s contribution and, erroneously, inclined to virtual equality of contribution and gave limited reasons for doing so. Connolly J in Lauchlan v Hartley⁴ recognised, in relation to the Appeal Costs Fund Act, that:

“… appeals from the exercise of a judicial discretion will frequently turn upon the weight to be given to one or more of the relevant considerations”,

so as to be amenable to the regime in the Act.

7. As Holmes JA observed in R v Moti⁵ there is often a real question as to whether a consideration of the exercise of a judicial discretion is a question of law. Here the appeal succeeded after an analysis of the parties’ relative contributions to the relationship property. As her Honour observed in Moti:

“Although it may be possible to characterise that question as one of law, as in Vella v Larson⁶ it ‘really involved only an assessment and weighing of facts’”.⁷

8. 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.”⁸

His Honour continued:

“Moffitt J in Acquilina v. Dairy Farmers Milk Co.⁹… 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.¹⁰… 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.’”¹¹

9. 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 …”¹²

10. Here the trial judge did not engage in an erroneous pronouncement on a point not argued by the parties, nor did he seek to direct the respondent into any particular path. The respondent ran the case and made submissions very much as found by the judge. This court concluded that in doing so his Honour erred. There are no features in the way the trial was conducted nor the role of the trial judge nor in the nature of the error identified which led to a successful appeal outcome for the appellant which would enliven the discretion to grant an indemnity certificate.

11. The application for an indemnity certificate should be refused.

12. The orders are:

1.The respondent pay the appellant’s costs of and incidental to the appeal on the standard basis.

2.Refuse the respondent’s application for an indemnity certificate pursuant to s 15 of the Appeal Costs Fund Act 1973 (Qld).

Footnotes

1. GAJ v RAJ [2011] QCA 65. ↩

2. The respondent complied with para 29 of Practice Direction No. 2 of 2010 in that the application was made within 14 days of the delivery of the appeal judgment. ↩

3. KQ v HAE [2006] QCA 489 at [25]. ↩

4. [1980] Qd R 149 at 151. ↩

5. [2010] QCA 241 at [5]. ↩

6. [1982] Qd R 298 at 303. ↩

7. At [5]. ↩

8. At 300. ↩

9. [1965] NSWR 772, at 774. ↩

10. [1966] 1 NSWR 689, at 695. ↩

11. At 300. ↩

12. At 300-301. ↩