Cameron v Noosa SC

[2006] QCA 144

SUPREME COURT OF QUEENSLAND

CITATION:

Cameron v Noosa SC [2006] QCA 144

PARTIES:

IAN MILNE DIXON CAMERON
(appellant/respondent)
v
COUNCIL OF THE SHIRE OF NOOSA

(respondent/applicant/appellant)

FILE NO/S:

Appeal No 7232 of 2005
P & E Appeal No 84 of 1995

DIVISION:

Court of Appeal

PROCEEDING:

Planning and Environment Appeal - Further Order
Application for Leave Integrated Planning Act

Application for Extension of Time/General Civil Appeal

ORIGINATING COURT:

Planning and Environment Court at Brisbane

DELIVERED ON:

Judgment delivered 13 April 2006

Further Order delivered 5 May 2006

DELIVERED AT:

Brisbane

HEARING DATE:

1 March 2006

JUDGES:

McMurdo P, Jerrard JA and Holmes J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

FURTHER ORDER:

1.Application for indemnity certificate allowed
2.Indemnity certificate granted          

CATCHWORDS:

APPEAL AND NEW TRIAL - APPEAL-PRACTICE AND PROCEDURE - QUEENSLAND - APPEAL COSTS FUND - POWER TO GRANT INDEMNITY CERTIFICATE - GENERAL PRINCIPLES AS TO GRANT OR REFUSAL - where respondent Mr Cameron seeks to apply for an indemnity certificate under s 15(1) Appeal Costs Fund Act 1973 (Qld) - whether indemnity certificate should be granted

Appeal Costs Fund Act 1973 (Qld), s 15

COUNSEL:

C L Hughes SC, with T N Trotter, for the appellant
R S Litster for the respondent

SOLICITORS:

Wakefield Sykes for the appellant
Hopgood Ganim Lawyers for the respondent

1. McMURDO P:  Orders and reasons for judgment were delivered in this appeal on 13 April 2006:  see Cameron v Noosa SC.[1] In those reasons this Court noted that should the respondent to the appeal, Mr Cameron, wish to apply for an indemnity certificate under s 15 Appeal Costs Fund Act 1973 (Qld) ("the Act") he should do so in compliance with the relevant practice direction. Mr Cameron has now made that application.

   [1][2006] QCA 109; Appeal No 7232 of 2005, 13 April 2006.

1. The appeal succeeded on a question of law, so that under s 15 of the Act this Court may grant Mr Cameron an indemnity certificate in respect of that appeal. This Court's discretion is unfettered: s 21 of the Act. The appeal was successful on a limited basis; on the principal legal issue raised by the appellant, the Noosa Shire Council ("the Council"), Mr Cameron was successful. Although this Court found that Mr Cameron's application to the primary court was premature, in the light of then existing authority, this was an understandable error of judgment. In these circumstances it is appropriate to grant Mr Cameron an indemnity certificate in respect of the costs ordered against him in the appeal. As Mr Cameron's counsel points out in the outline of argument filed in this application, the costs referrable to the Council's applications for an extension of time within which to apply for leave to appeal and for leave to appeal are, for the purposes of this case, indistinguishable from those costs referrable to the resulting appeal.

1. I would make the further order that the respondent to the appeal, Ian Milne Dixon Cameron, be granted an indemnity certificate under s 15(1) Appeal Costs Fund Act 1973 (Qld).

1. JERRARD JA:  I have had the benefit of reading the reasons for judgment and orders proposed by the President, and respectfully agree with those.

1. HOLMES J:  I agree, for the reasons given by the President, that an indemnity certificate should be granted to the respondent.