Esat v Rauchle (No. 2)

[2018] QDC 250

DISTRICT COURT OF QUEENSLAND

CITATION:

Esat v Rauchle (No. 2) [2018] QDC 250

PARTIES:

IMRAAN ESAT

(respondent/appellant)

v

SCOTT CAMERON RAUCHLE

(applicant/respondent)

FILE NO/S:

1256/18

DIVISION:

Criminal

PROCEEDING:

Appeal – Further Order

ORIGINATING COURT:

Magistrates Court at Wynnum

DELIVERED ON:

6 December 2018

DELIVERED AT:

Brisbane

JUDGE:

Farr SC DCJ

ORDER:

The applicant/respondent be granted an indemnity certificate pursuant to s 15 of the Appeal Costs Fund Act 1973 (Qld) in respect of the appeal which he unsuccessfully defended.

CATCHWORDS:

COSTS – where respondent applied for an indemnity certificate pursuant to s 15 of the Appeal Costs Fund Act 1973 (Qld) – whether indemnity certificate should be granted

Appeal Costs Fund Act 1973 (Qld) s 15, s 21

Brannock v Jetstar Airways Pty Ltd [2010] QCA 252
Lauchlan v Hartley [1980] Qd R 149

SOLICITORS:

Department of Agriculture and Fisheries for the respondent/appellant

Australian Law Partners for the applicant/respondent

1. Judgment was delivered by this court on 4 December 2018 allowing an appeal against a sentence of a fine of $2,000 imposed in the Magistrates Court at Wynnum on 9 March 2018. The fine was set aside and in lieu thereof, the applicant/respondent was fined $6000.

1. The applicant/respondent now applies for the grant of an indemnity certificate pursuant to s 15 of the Appeal Costs Fund Act 1973 (Qld). It relevantly states:

“(2)     Where an appeal against the decision of a court to the District Court on a question of law succeeds, the District Court may, upon application made in that behalf, grant to any respondent to the appeal an indemnity certificate in respect of the appeal.”

1. Pursuant to s 21, the grant or refusal of an indemnity certificate lies in the discretion of the court and no appeal lies from its grant or refusal.

1. In Brannock v Jetstar Airways Pty Ltd [2010] QCA 252, the court said at [2]:

“… The approach has been to require that the argument advanced below and which has proved to be unsuccessful on appeal was fairly arguable. Lauchlan v Hartley gave guidance in respect of ‘the type of situation in which it may be said that the argument advanced was reasonable or that the proposition was fairly arguable” and thus be amenable to the favourable exercise of the discretion. The guidance offered has consistently been applied since that decision. Connolly J, with whom Wanstall CJ and Lucas SPJ agreed, said:

‘Where a decision is reversed on a point of law it will frequently be the case that both sides of the debate are fairly arguable … A different category of case altogether however is that where the Full Court is of the view that there was no basis on which the judgment or order under appeal could properly have been made … If, in the opinion of the Full Court, the legal warrant was arguably available or the settled principle was arguably distinguishable, the respondent may still succeed in obtaining a certificate. If not he will ordinarily fail to obtain the certificate.’” (footnotes omitted)

1. The current matter involved a consideration of the principle of general deterrence and whether the learned magistrate gave sufficient recognition to it in the sentence he imposed. Notwithstanding that the quantum of the fine he imposed fell within the range submitted for by counsel for the applicant/respondent in the court below, the comparable decisions relied upon supported such a submission as being fairly arguable. It follows that the respondent should therefore be granted an indemnity certificate.

Order

1. The applicant/respondent be granted an indemnity certificate pursuant to s 15 of the Appeal Costs Fund Act 1973 (Qld) in respect of the appeal which he unsuccessfully defended.