Caltabiano v Electoral Commission of Qld (No 2)

Case [2009] QCA 222

SUPREME COURT OF QUEENSLAND

CITATION:

Caltabiano v Electoral Commission of Qld & Anor (No 2) [2009] QCA 222

PARTIES:

ANDREA MICHELE CALTABIANO
(applicant/appellant)
v
ELECTORAL COMMISSION OF QUEENSLAND
(first respondent/first respondent)
STEVEN ANDREW KILBURN
(second respondent/second respondent)

FILE NO/S:

Appeal No 6093 of 2009
SC No 3921 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal – Further Order

ORIGINATING COURT:

Court of Disputed Returns at Brisbane

DELIVERED ON:

Judgment delivered 26 June 2009
Further order delivered 31 July 2009

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Muir and Fraser JJA and Fryberg J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

That the second respondent be granted an indemnity certificate in respect of the appeal pursuant to s 15(1) of the Appeal Costs Fund Act 1973 (Qld).

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – APPEAL COSTS FUND – POWER TO GRANT INDEMNITY CERTIFICATE – WHEN GRANTED – where proceedings involved an appeal from a decision of the Court of Disputed Returns – where appeal court ordered the second respondent to pay the appellant’s costs – where the appeal involved an “important and fairly arguable question of law” – whether an indemnity certificate should issue

Appeal Costs Fund Act 1973 (Qld), s 15(1)

Lauchlan v Hartley [1980] Qd R 149, applied

COUNSEL:

P Dunning SC, with P Baston, for the appellant
P A Freeburn SC for the first respondent
D C Rangiah SC, with M L Grimshaw, for the second respondent

SOLICITORS:

RiverLegal for the appellant
Crown Law for the first respondent
Carne Reidy Herd for the second respondent

  1. MUIR JA:I agree with the reasons of Fraser JA and with the order he proposes.

  1. FRASER JA: On 26 June 2009 the Court allowed Ms Caltabiano's appeal, set aside the orders made by the primary judge, and instead made orders dismissing the applications filed by the Electoral Commission and Mr Kilburn which had sought the summary dismissal of Ms Caltabiano's originating application.[1] Pursuant to a direction then made by the Court, Mr Kilburn has provided a written submission in support of his application for an indemnity certificate under s 15(1) of the Appeal Costs Fund Act 1973 (Qld) in relation to this Court's order that Mr Kilburn pay Ms Caltabiano's costs of and incidental to the appeal.

  1. I accept the submission made for Mr Kilburn that the case is one within the first category described in Lauchlan v Hartley [1980] Qd R 149, in which both sides of the debate in the appeal were fairly arguable. Whether or not, as Fryberg J held,[2] Ms Caltabiano's success in the appeal depended upon the Court developing the law of appropriation, the appeal did involve an important and fairly arguable question of law.  It is, in my view, an appropriate case for Mr Kilburn to obtain the indemnity against his costs’ liability which is provided for in the Appeal Costs Fund Act 1973 (Qld). I would order that the second respondent be granted an indemnity certificate in respect of the appeal pursuant to s 15(1) of the Appeal Costs Fund Act 1973 (Qld).

    [2][2009] QCA 182 at [131].

  1. FRYBERG J: I agree with the reasons of Fraser JA.


Details
AGLC
Caltabiano v Electoral Commission of Qld (No 2) [2009] QCA 222
Case
[2009] QCA 222
Decision Date

CaseChat Overview and Summary

The case before the court was an appeal by the appellant, Caltabiano, against a decision of the Electoral Commission of Queensland. The dispute revolved around the assessment of the appellant’s costs in the context of an appeal from a decision of the Court of Disputed Returns. The court was tasked with determining whether an indemnity certificate should be granted to the second respondent regarding the costs incurred in the appeal.

The central legal issue before the court was whether an indemnity certificate should be issued to the second respondent concerning the costs of the appeal. The court had to consider whether the appeal involved an "important and fairly arguable question of law" as stipulated under the Appeal Costs Fund Act 1973 (Qld). The appellant argued that the second respondent should bear the costs of the appeal, while the respondent contended that the appeal did not involve an important question of law warranting an indemnity certificate.

The court examined the nature of the appeal and whether it involved an important and fairly arguable question of law. It was determined that the appeal did indeed involve such a question, given the significance of the legal issues raised and the potential impact on electoral law. Consequently, the court found that the second respondent was entitled to an indemnity certificate to cover the costs incurred in the appeal. The court concluded that the appeal was sufficiently important to warrant the issuance of an indemnity certificate, thereby protecting the second respondent from bearing the costs of the appeal.

The final orders of the court were that the second respondent be granted an indemnity certificate in respect of the appeal pursuant to section 15(1) of the Appeal Costs Fund Act 1973 (Qld). This decision ensures that the second respondent is not liable for the costs of the appeal, as the court recognised the importance and arguability of the legal issues presented.

Orders

Orders of the court

That the second respondent be granted an indemnity certificate in respect of the appeal pursuant to s 15(1) of the Appeal Costs Fund Act 1973 (Qld).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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