Chardon v Bradley - [2018] QCA 68

SUPREME COURT OF QUEENSLAND

CITATION:	Chardon v Bradley [2018] QCA 68
PARTIES:	JOHN WILLIAM CHARDON (applicant) v JILLIAN KATHLEEN BRADLEY (respondent)
FILE NO/S:	Appeal No 7385 of 2017 DC No 713 of 2015
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Civil) – Further Order
ORIGINATING COURT:	District Court at Brisbane – Unreported, 20 June 2017 (Clare SC DCJ)
DELIVERED ON:	13 April 2018
DELIVERED AT:	Brisbane
HEARING DATE:	Heard on the papers
JUDGES:	Fraser and Morrison and McMurdo JJA
ORDER:	That an indemnity certificate pursuant to s 15 of the Appeal Costs Fund Act 1973 (Qld) be granted to the respondent.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – APPEAL COSTS FUND – POWER TO GRANT AN INDEMNITY CERTIFICATE – where the Court allowed the appeal against the decision of the primary judge and set aside the orders made – where the unsuccessful respondent seeks an indemnity certificate – where the appeal turned on the exploration of factual aspects – whether an indemnity certificate should be granted Appeal Costs Fund Act 1973 (Qld), s 15 Chardon v Bradley[2017] QCA 314, related Lauchlan v Hartley [1980] Qd R 149, applied
COUNSEL:	A J Glynn QC, with O K Perkiss, for the applicant D J Kelly for the respondent
SOLICITORS:	Paddington Law for the applicant Biggs Fitzgerald Pike for the respondent

[1] FRASER JA: I agree with the reasons for judgment of Morrison JA and the order proposed by his Honour.
[2] MORRISON JA: On 19 December 2017 this Court delivered its reasons on the appeal, the issue being whether the learned primary judge erred in refusing leave to amend the appellant’s defence in a way in which he could preserve his right to privilege against self-incrimination.
[3] The appellant succeeded because the learned primary judge fell into error when her Honour concluded that there was no real explanation as to why a positive case could not be pleaded, and confined the risk of self-incrimination to the response to six pleaded offences of which the appellant was convicted. This Court took the view that the risk to which the appellant might be exposed, if he pleaded beyond the fact that the acts constituting the six convicted offences never occurred, was not tenuous or remote. A number of possibilities were identified under which the operation of the Uniform Civil Procedure Rules 1999 (Qld) would require a pleading exposing the appellant to the risk of self-incrimination.
[4] The respondent now seeks an indemnity certificate under s 15 of the Appeal Costs Fund Act 1973 (Qld). It provides that where an appeal to this Court succeeds on a question of law, the Court may grant a respondent to the appeal an indemnity certificate. That certificate extends to the costs ordered to be paid to the successful appellant, and an amount equal to the respondent’s costs of the appeal.
[5] The application is made upon the basis of what was said in Lauchlan v Hartley

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Chardon v Bradley

Details

AGLC: Chardon v Bradley [2018] QCA 68
Case: [2018] QCA 68
Decision Date: 13 April 2018

CaseChat Overview and Summary

In the matter of Chardon v Bradley, the appeal was brought before the court following a decision made by a primary judge, which the appellant contested. The case was heard in the Queensland court, where the appellant sought to overturn the primary judge's ruling. The core of the dispute centred on the interpretation and application of certain legal principles, which the appellant argued were misapplied by the primary judge. The appellant further contended that the outcome of the case was influenced by errors in the assessment of factual aspects, which warranted a review by a higher court.

The legal issues before the court involved determining whether the appeal against the primary judge's decision should be upheld, and if so, what the appropriate remedy would be. Specifically, the court had to consider the scope and application of the Appeal Costs Fund Act 1973 (Qld) in the context of granting an indemnity certificate. This involved examining whether the appeal was meritorious and whether the respondent, having lost the appeal, should be granted an indemnity certificate to cover the costs incurred in the appeal process. The court needed to balance the principles of justice and fairness with the statutory provisions governing appeal costs.

Upon reviewing the appeal, the court found that the appeal was indeed meritorious, as the primary judge's decision contained significant errors that warranted the setting aside of the orders made. The appeal was thus allowed, and the primary judge's decision was overturned. Given the findings, the court proceeded to consider the request for an indemnity certificate by the respondent. The court determined that, given the nature of the appeal and the successful outcome for the appellant, an indemnity certificate should be granted to the respondent under section 15 of the Appeal Costs Fund Act 1973 (Qld). This decision was based on the recognition that the appeal had explored critical factual aspects that warranted a review by a higher court.

The court's final order was that an indemnity certificate be granted to the respondent, allowing them to recover the costs incurred in the appeal process. This order reflected the court's assessment that the appeal was significant enough to warrant the relief sought by the respondent, despite the ultimate outcome of the appeal being in favour of the appellant.

Orders

Orders of the court

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

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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