Di Carlo v Sefton

[2006] QDC 43

DISTRICT COURT OF QUEENSLAND

CITATION:

Di Carlo v Sefton [2006] QDC 043

PARTIES:

Salvatore Di Carlo

(Appellant)

v

M T Sefton

(Respondent)

FILE NO/S:

1237/05

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates’ Court

DELIVERED ON:

9 February 2006

DELIVERED AT:

Brisbane

HEARING DATE:

9 February 2006

JUDGE:

Forde DCJ

ORDER:

1. That the order made on 3 February 2006 whereby the applicant was granted a certificate under the Appeal Costs Fund Act be vacated.

CATCHWORDS:

INDEMNITY CERTIFICATE – APPEAL COSTS FUND – where appeal unsuccessful – where lower court made an error in law – ability to vacate the order

Appeal Costs FundAct (1973) ss 15, 17

UCPR rr 388, 667

Autodesk Inc v. Dyason (1993) 176 CLR 300

Bailey v Marinoff (1971) 125 CLR 529

Smith v New South Wales Bar Association (1992) 176 CLR 256

COUNSEL:

Mr S Di Carlo for himself

SOLICITORS:

N/A

HIS HONOUR:  On the 3rd of February 2006 leave to appeal the decision of the learned Magistrate who refused to set aside judgment against the defendant was refused.  Costs were ordered against the applicant.

For leave to be granted the applicant had to show that there was an important principle of law or justice involved.  Extempore reasons were given on 3rd February.  The judgment was originally entered against the defendant who is the son of Mr Di Carlo who appears before me.

Mr Di Carlo Senior who appears before me as the applicant mistakenly believed that judgment was entered against him.  He had reasons for so thinking as the learned Magistrate erred in his findings of vicarious liability and execution process was mistakenly served on Mr Di Carlo Senior.

As leave was refused, the applicant did not succeed on the appeal.  The applicant, Mr Di Carlo, did satisfy me that the learned Magistrate had erred.  He applied for a certificate from the Appeal Costs Fund.  This was granted.

The respondent did not oppose the application although it has no interest in the question and has indicated that the respondent would not be represented today.

The present hearing is to decide whether the order to grant the certificate should be vacated.  The reason is that under the Appeal Costs Fund there is no provision to grant a certificate where an appellant does not succeed yet is successful in convincing a Court that an error of law has been made in the lower Court. 

Section 17 only applies where the appellant is successful on a question of law and the respondent to the appeal does not appear and no order for costs is made against a respondent. Section 15(3) only applies where an appeal on a question of law succeeds and a certificate is granted to a respondent.

The power to vacate an order which ought not to have been made on questions of costs can be found either in Rule 388 or Rule 667. In helpful submissions form Mr Di Carlo, he refers to the inherent jurisdiction of the Court and the decision which have been applied in this State of Bailey and Marinoff, (1971) 125 CLR 529 at 530, but at that time a rule such as 667 did not exist.

Rule 667, it is conceded by the applicant, allows a Court to vary or set aside an order before the earlier of the following, the filing of the order or at the end of seven days after making the order. The power is a discretionary one, it is submitted, and there are no specific fetters to the exercise of the discretion other than the general consideration that litigation should be able to be finalised and acted upon by the parties. (See Smith against New South Wales Bar Association (1992) 176 CLR 256).

It is also submitted that where a judgment has not been entered, which is the case here, a Court has power to reopen a judgment. (See Autodesk Inc v. Dyason (1993) 176 CLR 300 at paragraph 4).

It should be mentioned that this order was made in the absence of any representation by the Appeal Costs Fund Board.  Also, it is an order which did not reflect the intention of the Court, namely that there was power to grant a certificate in the present circumstances. 

The applicant was not so entitled as in this particular case  as he has not conceded this morning.  The relevant authorities are referred to.

The appeal did not succeed notwithstanding there was an error made by the learned Magistrate.  This Court was bound by the authorities referred to in the extempore judgment.

The order made on 3rd of February 2006 whereby the applicant, who appeared before me, was granted a certificate under the Appeal Costs Fund Act is hereby vacated.

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