Hare v Mt Isa Mines Ltd & Ors (No 2)

[2009] QCA 137

SUPREME COURT OF QUEENSLAND

CITATION:

Hare v Mt Isa Mines Ltd & Ors (No 2) [2009] QCA 137

PARTIES:

STELLA YVONNE HARE by her litigation guardian
DAPHNE YVONNE HARE
(applicant/respondent)
v
MOUNT ISA MINES LIMITED
ACN 009 661 447
(first respondent/first applicant/appellant)
XSTRATA PLC (INCORPORATED IN ENGLAND AND WALES UNDER THE COMPANIES ACT 1985 WITH REGISTRIES NUMBER 4345939)
(second respondent/second applicant/appellant)
XSTRATA QUEENSLAND LIMITED
ACN 009 814 019
(third respondent/third applicant/appellant)

FILE NO/S:

Appeal No 10289 of 2008
DC No 1722 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Miscellaneous Application – Civil

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

Judgment delivered 17 April 2009
Further Orders delivered 22 May 2009

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Holmes and Fraser JJA and Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

FURTHER ORDERS:

1.   Respondent pay appellants’ costs of the application at first instance and of the application and appeal in this Court;

2.   Respondent’s application for an indemnity certificate under s 15 of the Appeal Costs Fund Act 1973 (Qld) granted.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – APPEAL COSTS FUND – POWER TO GRANT INDEMNITY CERTIFICATE – WHEN GRANTED – where appellants’ appeal succeeded on a question of law – where respondent was ordered to pay appellants’ costs – where respondent applied for an indemnity certificate under the Appeal Costs Fund Act 1973 (Qld) – whether Court should grant indemnity certificate

Appeal Costs Fund Act 1973 (Qld), s 15

Lauchlan v Hartley [1980] Qd R 149, cited

COUNSEL:

L F Kelly SC, with B F Charrington, for the applicants/appellants
G R Mullins for the respondent

SOLICITORS:

Allens Arthur Robinson for the applicants/appellants
Slater & Gordon Lawyers for the respondent

1. :HOLMES JA On 17 April 2009, this Court upheld the appellants’ appeal against a District Court judge’s decision to declare that a part 1 notice of claim, delivered by the respondent under the Personal Injuries Proceedings Act 2002 (Qld) (“PIPA”), complied with the requirements of that Act. The respondent was ordered to pay the appellants’ costs of the application at first instance and of the application and appeal in this Court. However, that order was vacated on the respondent’s application and the respondent was given leave to make written submissions as to costs. As it transpires, however, the respondent’s application is not in relation to the terms of the costs order, which should now be reinstated; rather she seeks an indemnity certificate under the Appeal Costs Fund Act 1973 (Qld).

1. Section 15 of the Appeal Costs Fund Act provides:

“15       Grant of indemnity certificate

(1)       Where an appeal against the decision of a court—

(a)       to the Supreme Court;

(b)…

on a question of law succeeds, the Supreme Court may, upon application made in that behalf, grant to any respondent to the appeal an indemnity certificate in respect of the appeal.… .”

1. The appellants’ primary argument on the appeal was that the learned judge at first instance had erred in construing the requirements of PIPA as to a complying part 1 notice of claim, with a secondary argument that the judge’s finding of compliance as a matter of fact was wrong. This Court accepted the primary argument as to the law, and in consequence set aside the decision below. The relevant sections of PIPA were construed and the matter reconsidered on the basis of that construction.

1. It is certainly the case that at first instance the respondent, on the strength of a purposive approach to PIPA, encouraged the learned judge to a less rigorous construction of the provisions, favourable to her position. I do not think, however, that it can be said that her position was not “fairly arguable”[1], particularly given the dearth of authority on the relevant provisions.  In my view, this Court’s discretion to grant a certificate would properly be exercised in the respondent’s favour.

   [1]See Lauchlan v Hartley [1980] Qd R 149 at 151.

1. I would order that the respondent pay the appellants’ costs of the application at first instance and of the application and appeal in this Court; and grant the respondent an indemnity certificate in respect of the appeal.

1. FRASER JA:  I agree with the orders proposed by Holmes JA and her Honour’s reasons for those orders.

1. DOUGLAS J:  I agree with the orders proposed by Holmes JA and her Honour’s reasons for those orders.