De Lacey v Juunyjuwarra People

SUPREME COURT OF QUEENSLAND

CITATION: De Lacey v Juunyjuwarra People & Anor [2004] QCA 323
PARTIES: RALPH DE LACEY
(applicant/second respondent)
v
JUUNYJUWARRA PEOPLE
(first respondent/first respondent)
STATE OF QUEENSLAND
(second respondent/appellant)
FILE NO/S: Appeal No 2798 of 2004
NTXP00130 of 2003
DIVISION: Court of Appeal
PROCEEDING: General Civil Appeal - Further Order
ORIGINATING
COURT: Land and Resources Tribunal at Brisbane
DELIVERED ON: Judgment delivered 13 August 2004
Further Order delivered 10 September 2004
DELIVERED AT: Brisbane
HEARING DATE: 20 July 2004
JUDGES: Davies JA, Mackenzie and Mullins JJ
Judgment of the Court
FURTHER

1. The second respondent pay the appellant's costs of

ORDER: the appeal to be assessed
2. Grant an indemnity certificate under s 15(1) of
the Appeal Costs Fund Act 1973 (Qld) to the second
respondent

CATCHWORDS:

PROCEDURE - COSTS - where appeal was necessary as a result of the error of law made by Land and Resources Tribunal - where appellant as the successful party should have an order for costs against the second respondent - whether appropriate in the circumstances for an indemnity certificate to be granted - indemnity certificate granted
Appeal Costs Fund Act 1973 (Qld), s 15(1)
COUNSEL: P J Flanagan SC, with J M Horton, for the appellant
J K Khatri (sol) for the first respondent
G E Hiley QC, with P R Smith, for the second respondent

SOLICITORS:

C W Lohe, Crown Solicitor, for the appellant Ebsworth & Ebsworth for the first respondent MacDonnells for the second respondent

THE COURT: When the reasons for judgment were published in De Lacey v Juunyjuwarra People & Anor [2004] QCA 297, the parties were invited to make written submissions as to costs. Each of the parties has delivered written submissions to the Court.
The first respondent did not take an active role in relation to the appeal and submits that no order for costs should be made against them. That is appropriate. The costs question arises between the protagonists who were the appellant and the second respondent.
The appellant was successful in arguing on the appeal that the Tribunal did not have jurisdiction to determine as a preliminary issue whether the Starcke Pastoral Holdings Acquisition Act 1994 (Qld) extinguished all native title rights and interests of the first respondent in relation to the land that was the subject of a high impact exploration permit made by the second respondent. The Tribunal’s decision was made on the application of the second respondent. The appellant therefore submits that the general rule that costs should follow the event should operate and that the second respondent should pay the appellant’s costs of the appeal.
The second respondent seeks an order that each party bear its own costs of the appeal. In the alternative, the second respondent seeks an indemnity certificate in respect of the appeal pursuant to s 15(1) of the Appeal Costs Fund Act 1973 (Qld).
The second respondent elected to bring the application which resulted in the Tribunal’s decision and to which the appellant was a proper party. The second respondent had expressly disavowed in his application that he was seeking a determination of native title. As is apparent from the Tribunal’s reasons for decision, the Tribunal went much further in deciding the extent of its jurisdiction than was required of it by the second respondent.
Notwithstanding that the second respondent is dissatisfied with the dealings which he has had in this matter with the appellant, prior to it being referred to the Tribunal, the appellant has been successful as a litigant on this appeal and should have its costs paid by the second respondent. As the appeal was necessary, as a result of the error of law made by the Tribunal, it is an appropriate case in the circumstances for an indemnity certificate to be granted to the second respondent.
The orders which should be made are:

1. The second respondent pay the appellant’s costs of the appeal to be assessed.
2. Grant an indemnity certificate under s 15(1) of the Appeal Costs Fund Act 1973 (Qld) to the second respondent.

The case of De Lacey v Juunyjuwarra People involved an appeal against a decision made by the Land and Resources Tribunal. The appellant, De Lacey, sought an order for costs against the second respondent, the Juunyjuwarra People, as the successful party in the appeal. The central issue was whether it was appropriate for an indemnity certificate to be granted, given that the appeal was necessary due to the Tribunal's error of law. The appeal arose from the Tribunal's decision, which was flawed due to a legal misapplication. This error necessitated the appeal, and as a result, the appellant argued that they should be awarded costs against the second respondent. The court considered the circumstances and the necessity of the appeal, concluding that an indemnity certificate should be granted.

The court examined the legal principles governing costs in appeals where the appeal was necessitated by an error of law made by the original tribunal. It was established that in such cases, the successful party in the appeal should be awarded costs against the party who caused the appeal. The court applied these principles to the current case and found that the error of law by the Tribunal indeed warranted the appeal. Consequently, the court determined that it was appropriate to grant an indemnity certificate, allowing the appellant to recover costs from the second respondent. This decision was made to ensure that the successful party in the appeal was not left to bear the burden of the costs incurred due to the original tribunal's error.

The court's reasoning was grounded in the need to uphold the principle that the successful party in an appeal, where the appeal was necessitated by the original tribunal's error, should be compensated for the costs incurred. By granting the indemnity certificate, the court aimed to rectify the unfairness that would otherwise result from the appellant having to bear the costs of the appeal due to the Tribunal's error. This approach ensures that the legal system functions efficiently and that parties are not unjustly disadvantaged by errors made in the original tribunal's decision.

The final orders of the court were to assess the appeal and to grant an indemnity certificate, allowing the appellant to recover costs from the second respondent. This outcome reflected the court's commitment to ensuring that the legal process is fair and that parties are appropriately compensated for costs incurred due to errors made by the original tribunal.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

CATCHWORDS:	PROCEDURE - COSTS - where appeal was necessary as a result of the error of law made by Land and Resources Tribunal - where appellant as the successful party should have an order for costs against the second respondent - whether appropriate in the circumstances for an indemnity certificate to be granted - indemnity certificate granted
Appeal Costs Fund Act 1973 (Qld), s 15(1)
COUNSEL:	P J Flanagan SC, with J M Horton, for the appellant J K Khatri (sol) for the first respondent G E Hiley QC, with P R Smith, for the second respondent
SOLICITORS:	C W Lohe, Crown Solicitor, for the appellant Ebsworth & Ebsworth for the first respondent MacDonnells for the second respondent