Entsch v Smith

[1992] QCA 143

IN THE COURT OF APPEAL	[1992] QCA 143
SUPREME COURT OF QUEENSLAND	No. 2709 of 1989
BETWEEN:

GRAHAM ENTSCH

(Plaintiff) Respondent

AND:

MICHAEL A. SMITH

(First Defendant) Appellant

AND:

DOUGLAS KERR

(Second Defendant) Appellant

REASONS FOR JUDGMENT OF THE COURT

Delivered the 15th day of June 1992

This appeal was heard on 11 and 12 February 1992 and judgment in the appeal was given on 6 March 1992. No application was made by the respondent for an indemnity certificate pursuant to s.15(1) of the Appeal Costs Fund Act 1973 before the conclusion of argument as required by Practice Direction No. 2 of 1982. Nor was any such application made on the date judgment was given. On that date however counsel for the respondent sought leave to make such an application. He was informed by Mr Justice Davies, who delivered the judgment of the court, that no leave was necessary.

An application was eventually made on 6 April 1992. No explanation was given for this delay although reasons were given as to why such a certificate had not been sought before the conclusion of oral argument, as required by the Practice Direction. Those reasons were uncertainty as to the practice to be adopted by the Court of Appeal, failure of the respondent's solicitor to advert to the Practice Direction, a change of counsel the day before the commencement of the hearing, an expectation that the appeal would fail and simply oversight. We need hardly say that none of these is a satisfactory explanation. However, we would be reluctant to deny a certificate, notwithstanding the lack of satisfactory explanation for the failure of the respondent to make this application before the close of oral argument and the absence of any explanation for the further delay of a month after judgment, if the respondent were otherwise entitled to one.

However, there are two reasons why, in this case, such an application should, in any event, be refused. The first is that the substantial questions in the appeal were questions of fact; whether, if paid an additional $60,000, the respondent's wife would have been prepared to forego her right to make a later application for further payment and consent to a different procedure which would have provided the respondent with the desired finality in the Family Court proceedings; and whether that Court would then have been satisfied that the total payment was "just and equitable" or "proper".

The second is that the trial judge failed to consider these questions of fact because he was led into error by evidence adduced by the respondent of a procedure in the Family Court

pursuant to which a registrar would enter a consent order
without enquiring whether it was "just and equitable" to do
so, and a submission based upon that evidence that a consent
order could properly have been obtained (and consequently
could not have been set aside) without the need for
consideration of that question by the Court.

For these reasons in our view the application should be refused.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	No. 2709 of 1989
Before the Court of Appeal
The President Mr Justice Davies Mr Justice Bryne
BETWEEN:

GRAHAM ENTSCH

(Plaintiff) Respondent

AND:

MICHAEL A. SMITH

(First Defendant) Appellant

AND:

DOUGLAS KERR

(Second Defendant) Appellant

REASONS FOR JUDGMENT OF THE COURT

Delivered the 15th day of June 1992

MINUTE OF ORDER:	Application by the respondent for an indemnity certificate pursuant to s.15(1) of the Appeal Costs Fund Act 1973 refused
CATCHWORDS:	APPEAL AND NEW TRIAL - COSTS - appellant seeks an indemnity certificate despite failure to apply before conclusion of oral argument - whether sufficient reason to deny certificate were appellant otherwise entitled - whether substantial questions on appeal ones of fact - whether judge led into error - Appeal Costs Fund Act 1973 s. 15(1)
Counsel:	P.A. Keane Q.C. with him P. O'Shea for the Appellants R. Bourke for the Respondent
Solicitors:	Corrs Chambers Westgarth for the Appellant Thynne & Macartney t/a for Primrose Couper Cronin Rudkin for the Respondent
Hearing Date(s):	11 and 12 February 1992

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	No. 2709 of 1989
BETWEEN:

GRAHAM ENTSCH

(Plaintiff) Respondent

AND:

MICHAEL A. SMITH

(First Defendant) Appellant

AND:

DOUGLAS KERR

(Second Defendant) Appellant

__________________________________________________

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THE PRESIDENT
DAVIES JA

BYRNE J

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Reasons for Judgment of the Court delivered the

15th day of June 1992

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"APPLICATION REFUSED"
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