Blackwood v Hinder (No. 2)

DISTRICT COURT OF QUEENSLAND

CITATION:

Blackwood v Hinder (No. 2) [2018] QDC 44

PARTIES:

Simon Blackwood

(Appellant)

v

Collin Hinder

(Respondent)

FILE NO/S:

4881/15

DIVISION:

Civil

PROCEEDING:

Appeal under section 222 of the Justices Act

ORIGINATING COURT:

Brisbane Industrial Magistrates Court

DELIVERED ON:

27 March 2018

DELIVERED AT:

Ipswich

HEARING DATE:

On the papers

JUDGE:

Horneman-Wren SC DCJ

ORDER:

1.   The respondent be granted an indemnity certificate under the Appeal Costs Fund Act 1973 in respect of the appeal.

CATCHWORDS:

APPEAL – INDUSTRIAL MAGISTRATES COURT – WORKER COMPENSATION AND REHABILITATION – where respondent seeks an indemnity certificate – where respondent successfully resisted two of the three contentions advance by the appellant in substantive proceeding – where respondent’s unsuccessful argument on the third contention was “fairly arguable” – whether the respondent should be granted an indemnity certificate pursuant to s15(2) of the Appeal Costs Fund Act1973

CASES:

Blackwood v Hinder [2017] QDC 239

Lauchlan v Hartley [2980] QdR 149

LEGISLATION:

Appeal Costs Fund Act 1973

Worker’s Compensation and Rehabilitation Act 2003

COUNSEL:

Written submissions of Mr Maher of Counsel for the Respondent

SOLICITORS:

Crown Law (Appellant)

Carter Capner Law (Respondent)

1. The appellant successfully appealed from the decision of an Industrial Magistrate for reasons explained in the substantive judgment.[1]

   [1]Blackwood v Hinder [2017] QDC 239.

1. The appellant does not seek costs.  The respondent seeks an indemnity certificate under the Appeal Costs Fund Act 1973 (ACFA).  An indemnity certificate would entitle the respondent to be paid from the fund an amount equal to his costs of the appeal as assessed or agreed.[2]

   [2]Section 16(1)(b)(i) ACFA.

1. Section 15(2) of the ACFA provides:

“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 and indemnity certificate in respect of the appeal.”

1. The appeal, essentially, concerned a question of law.  Particularly, the question of law was whether, on a proper construction of section 579(3) of the Worker’s Compensation and Rehabilitation Act 2003, knowledge of Workcover as referred to in that provision extends to that of its employees.  There was a factual question which also was decided in the appeal.  That was whether the learned Magistrate erred in determining whether an employee had the requisite knowledge.  However, that issue was one of mixed fact and law and itself was not essential to the resolution of the appeal.[3]

   [3]Paragraph [137] of the reasons.

1. I’m satisfied that the appeal is one to which section 15(2) of the ACFA applies such that the discretion to grant a certificate arises.

1. The respondent was successful in resisting two aspects of the construction of section 579(3) contended for by the appellant.  The first was that the words “whichever is the later” at the end of section 579(3) relate to section 579(3)(a)(b) and not section 579(3)(b)(i)(ii).  That issue was conceded by the appellant in oral argument.[4] 

   [4]Paragraph [76].

1. The second was that the relevant…