HWC v The Corporation of the Synod of the Diocese of Brisbane (No 2)

[2009] QCA 202

SUPREME COURT OF QUEENSLAND

CITATION:

HWC v The Corporation of the Synod of the Diocese of Brisbane (No 2) [2009] QCA 202

PARTIES:

HWC
(plaintiff/first respondent)
v
THE CORPORATION OF THE SYNOD OF THE DIOCESE OF BRISBANE
(first defendant/second respondent)
MINISTER OF EDUCATION FOR THE STATE OF SOUTH AUSTRALIA
(second defendant/first appellant)
THE STATE OF SOUTH AUSTRALIA
(third defendant/second appellant)
DONALD J HOPGOOD
(fourth defendant/not a party to the appeal)

FILE NO/S:

Appeal No 9753 of 2008
Appeal No 10034 of 2008
BS No 7453 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Miscellaneous Application – Civil

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

17 July 2009

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Keane, Fraser and Chesterman JJA
Judgment of the Court

ORDERS:

1.    In Appeal No 9753 of 2008, except for the orders made concerning the costs of the adjournment on 14 March 2008:

(a)   the plaintiff pay the second and third defendants' costs of and incidental to the plaintiff's application pursuant to the Limitation of Actions Act 1974 (Qld) and the Personal Injuries Proceedings Act 2002 (Qld) to be assessed;

(b)   the plaintiff pay the second and third defendants' costs of the claim to be assessed;

(c)   the first defendant pay the second and third defendants' costs of the third party proceedings to be assessed;

(d)   the plaintiff pay the second and third defendants' costs of and incidental to their application against him to be assessed;

(e)   the first defendant pay the second and third defendants' costs of and incidental to their application against it to be assessed; and

(f)    the plaintiff and the first defendant pay the second and third defendants' costs of the appeal to be assessed;

(g)   the plaintiff pay the first defendant's costs of the appeal including the costs payable by it to the second and third defendants under the orders in (c), (e) and (f)

2.    In Appeal No 10034 of 2008, the plaintiff pay the costs of the first, second and third defendants of the appeal and of the application to be assessed

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – APPEAL COSTS FUND – POWER TO GRANT INDEMNITY CERTIFICATE – WHEN REFUSED – where appeal turned on question of whether passage of time precluded fair trial and thereby prohibited extension of limitation period – whether question one of law or fact – whether competing arguments equally fairly arguable – whether indemnity certificate should issue

Appeal Costs Fund Act 1973 (Qld), s 15

Lauchlan v Hartley [1980] Qd R 149, cited

COUNSEL:

In Appeal No 9753 of 2008:
D North SC, with K Philipson, for the first and second appellants
R J Douglas SC, with D P de Jersey, for the first respondent
R S Ashton for the second respondent

SOLICITORS:

In Appeal No 9753 of 2008:
Crown Law for the first and second appellants
Shine Lawyers for the first respondent
Minter Ellison for the second respondent

1. THE COURT: The second and third defendants were successful in their appeals. They seek orders for costs which reflect that success. The plaintiff does not oppose the orders sought by the second and third defendants but seeks an indemnity certificate under s 15(1) of the Appeal Costs Fund Act 1973 (Qld) ("the ACF Act").

1. In support of the plaintiff's application, it is said that the only ground on which the appeals succeeded involved a question of law – that question being whether the plaintiff's delay in instituting proceedings had prejudiced the prospects of a fair trial of the action – and that on this question of law "both sides of the debate were fairly arguable".[1]

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

1. It is debatable whether it is correct to say that the basis on which the appeals succeeded turned upon a question of law.  On one view, the error which led this Court to set aside the decision below was essentially a matter of fact and impression.  But it is unnecessary to resolve this debate because, on any view, the error of the learned primary judge reflected her Honour's acceptance of the plaintiff's contention that there was no sufficient reason to doubt the prospects of a fair trial of the plaintiff's claims.

1. In the upshot, we are not persuaded that the ACF Act is available to underwrite the risk of an unsuccessful application for an extension of the limitation period where the delay which casts doubt on the prospect of a fair trial is as gross as was the delay in this case.

1. Accordingly, we would refuse the plaintiff's application for an indemnity certificate.

1. We make the following orders:

·     In Appeal No 9753 of 2008, except for the orders made concerning the costs of the adjournment on 14 March 2008:

(a)        the plaintiff pay the second and third defendants' costs of and incidental to the plaintiff's application pursuant to the Limitation of Actions Act 1974 (Qld) and the Personal Injuries Proceedings Act 2002 (Qld) to be assessed;

(b)        the plaintiff pay the second and third defendants' costs of the claim to be assessed;

(c)        the first defendant pay the second and third defendants' costs of the third party proceedings to be assessed;

(d)        the plaintiff pay the second and third defendants' costs of and incidental to their application against him to be assessed;

(e)        the first defendant pay the second and third defendants' costs of and incidental to their application against it to be assessed;

(f)        the plaintiff and the first defendant pay the second and third defendants' costs of the appeal to be assessed; and

(g)        the plaintiff pay the first defendant's costs of the appeal including the costs payable by it to the second and third defendants under the orders in (c), (e) and (f).

·     In Appeal No 10034 of 2008, the plaintiff pay the costs of the first, second and third defendants of the appeal and of the application to be assessed.