Sunland Group Ltd v Townsville City Council & Anor [2012] QCA 72

FILE NO/S: Appeal No 6771 of 2011 / P & E Appeal No 222 of 2010

DIVISION: Court of Appeal

PROCEEDING: Application for Leave Sustainable Planning Act – Further Order

ORIGINATING COURT: Planning and Environment Court at Townsville

DELIVERED ON: 27 March 2012

DELIVERED AT: Brisbane

HEARING DATE: Heard on the papers

JUDGES: Muir and Fraser JJA and Margaret Wilson AJA / Separate reasons for judgment of each member of the Court, each concurring as to the order made

FURTHER ORDER: The second respondent is granted an indemnity certificate pursuant to the Appeal Costs Fund Act 1973 (Qld) with respect to the costs ordered to be paid to the applicant and with respect to its own costs of the appeal.

CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – APPEAL COSTS FUND – POWER TO GRANT INDEMNITY CERTIFICATE – WHEN GRANTED – where the second 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 / Mitchell v Pacific Dawn Pty Ltd [2003] QCA 526, cited / Sultana Investments Pty Ltd v Cellcom Pty Ltd (No 2) [2009] 2 Qd R 287; [2008] QCA 398, cited

COUNSEL: No appearance by the applicant / No appearance by the first respondent / No appearance by the second respondent, the second respondent's submissions were heard on the papers

SOLICITORS: Hopgood Ganim for the applicant / Townsville City Council Legal for the first respondent / Stuart Watson Lawyers for the second respondent

1. MUIR JA: I agree with the reasons of Margaret Wilson AJA and with the order she proposes.

2. FRASER JA: I agree with the reasons of Margaret Wilson AJA and the order proposed by her Honour.

3. MARGARET WILSON AJA: The Townsville City Council (the first respondent) approved a development application made by Sunland Group Limited (the applicant). The Planning and Environment Court (“P & E Court”) allowed an appeal by the second respondent (Bushland Grove Pty Ltd t/a Mt Low Developments) against that decision. The applicant then sought the leave of this court to appeal against the decision of the P & E Court.

4. The applicant submitted that the P & E Court had made several errors of law in reaching its decision. This court found that the primary judge made one of those errors of law - that he failed to give adequate reasons for allowing the appeal.

5. This court made the following orders –

“1.Application for leave to appeal granted.

2.Appeal allowed.

3.Set aside the orders of the Planning and Environment Court made on 23 June 2011.

4.The matter be remitted to the Planning and Environment Court to be determined according to law by a judge other than the primary judge.

5.The second respondent pay the applicant's and the first respondent’s costs of the appeal.”

6. The second respondent seeks an indemnity certificate pursuant to s 15 of the Appeal Costs Fund Act 1973. So far as presently relevant, that section provides –

“15****Grant of indemnity certificate

(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.”

Such a certificate would entitle the second respondent to payment from the Appeal Costs Fund of an amount equal to the applicant Sunland Group Limited’s costs of the appeal and its own costs of the appeal (subject to a cap prescribed by regulation).¹ It would not entitle the second respondent to payment from the fund of the first respondent Council’s costs, which this court ordered it to pay.

7. In Sultana Investments Pty Ltd v Cellcom Pty Ltd (No 2)² White AJA (as her Honour then was), with whom the other members of the court agreed, discussed the granting of a certificate pursuant to s 15. Her Honour said –

“[21]The power to grant an indemnity certificate is discretionary and there is no appeal from the exercise of the discretion.³ There are no criteria in the Act for the exercise of the discretion, however, the Full Court in Lauchlan v Hartley⁴ considered how the discretion should be exercised and invited submissions from the Minister charged with oversight of the Fund.⁵ Counsel for the Minister conceded that notwithstanding that the submissions of counsel had led to the order or judgment which was later reversed, that should not, of itself, lead to a refusal of a certificate, provided that the submissions were reasonably advanced or were fairly arguable. Accordingly, the court gave some guidance about circumstances in which it may be said that the argument advanced was reasonable or that the proposition was fairly arguable. Emphasising that he intended to be neither definitive nor exhaustive Connolly J, with whom Wanstall CJ and Lucas SPJ agreed, said:⁶

‘Where a decision is reversed on a point of law it will frequently be the case that both sides of the debate are fairly arguable. Thus a situation in which the authorities are or appear to be in conflict provides an obvious instance in which a resort to the appellate process is justifiable although of course the limits to which it can properly be taken at the expense of the fund must depend on the particular circumstances. Again the proper construction of a particular instrument will often call for a nice balancing of competing considerations so that the opposing views may properly be regarded as fairly arguable. Again, 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. Yet another instance is provided by the appeal from a value judgment such as those aspects of the assessment of damages which are at large.

A different category of case altogether however is that where the Full Court is of the view that there was no basis on which the judgment or order under appeal could properly have been made. In such a case it is material to consider the part played by the unsuccessful respondent in leading the tribunal to the decision. Where the advocate, barrister or solicitor, invites a decision for which there is no legal warrant, or which is inconsistent in some respect with settled legal principle, the question arises whether his contentions were in truth fairly arguable. If, in the opinion of the Full Court, the legal warrant was arguably available or the settled principle was arguably distinguishable, the respondent may still succeed in obtaining a certificate. If not he will ordinarily fail to obtain the certificate.’

[22]An example where a certificate was not obtained is Zappulla v Perkins (No. 2)⁷ where the plaintiff at first instance based his claim for damages on a principle

‘…which was wrong, for elementary reasons, and he persuaded the judge of the District Court to accept that principle and act upon it in measuring his damages’.⁸

Lauchlan v Hartley was an example of the refusal of a certificate where counsel below sought a departure from settled practice in relation to orders for costs after payment into court.⁹

[23] An example of success was Haug v Jupiters Limited Trading as Conrad Treasury Brisbane¹⁰ which involved competing constructions of certain sections of the Personal Injuries Proceedings Act 2002. So, too, an application was successful in Jackson Nominees Pty Ltd v Hanson Building Products Pty Ltd¹¹ which concerned the implication of a term into a contract, said to be a question of law.”

8. In Mitchell v Pacific Dawn Pty Ltd¹² McPherson JA, with whom the other members of the court agreed, said –

“[17]As to costs, a great deal has been expended on the litigation, not all of which will be thrown away if a further hearing and determination proceeds to a conclusion. It was not, however, the fault of the parties that this has not already occurred, but a failing in the system for which they, their legal advisers or counsel are in no way responsible. Failure by the judge to give adequate reasons was held on appeal in Pettitt v Dunkley¹³ to constitute an error in law. When, as happened in the present case, that failure was attributable not to the parties but the judge, and the appeal succeeds on that ground, it is an appropriate case under s 15(1) of the Appeal Costs Fund Act 1973 (Qld) in which to grant an indemnity certificate having the effects and incidents set out in s 16 of that Act.”

9. The second respondent made extensive written submissions dealing with the two matters in respect of which the primary judge failed to give adequate reasons. His Honour’s failure to give adequate reasons was not attributable to the conduct of the second respondent or either of the other parties.

10. This is an appropriate case in which to grant the second respondent a certificate pursuant to s 15.

11. I would grant the second respondent an indemnity certificate pursuant to the Appeal Costs Fund Act 1973 (Qld) with respect to the costs ordered to be paid to the applicant and with respect to its own costs of the appeal.