Jamieson v Beattie

SUPREME COURT OF QUEENSLAND

CITATION:

Jamieson v Beattie [2008] QCA 358

PARTIES:

WILLIAM ROBINSON JAMIESON
(respondent/applicant)
v
PETER BEATTIE
(appellant/ respondent)

FILE NO/S:

Appeal No 109 of 2006
DC No 1 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Application for Indemnity Certificate

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

14 November 2008

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Holmes JA and Douglas J
Separate reasons for judgment of each member of the Court,
each concurring as to the order made

ORDER:

Application for Indemnity Certificate Refused

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND

PROCEDURE – QUEENSLAND – APPEAL COSTS FUND – POWER TO GRANT INDEMNITY CERTIFICATE – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where application for indemnity certificate made almost two years after judgment given in the Court of Appeal – where applicant furnished no submissions in explanation of the delay – whether an indemnity certificate should be granted

Appeal Costs Fund Act 1973 (Qld), s 15(1)

Lamb v Brisbane CC & Anor [2008] QCA 109, applied

SOLICITORS:

Clarke and Kann for the applicant
Baker Johnson Lawyers for the respondent

HOLMES JA: On 13 October 2006, judgment was given in this court allowing an appeal by Mr Beattie against a District Court judgment given in favour of Mr Jamieson, the applicant here. The applicant was ordered to pay Mr Beattie’s costs of and incidental to the appeal. The action at first instance was for defamation in respect of three separate publications This court found that the trial judge had erred in making findings unsupported by the evidence, that all imputations pleaded in respect of all three publications were made out and that the plaintiff had established an absence of good faith and actual malice.

On 16 September 2008, almost two years after judgment was delivered, the applicant applied for an indemnity certificate under s 15(1) of the Appeal Costs Fund Act 1973 (Qld) in respect of the costs of the appeal. The application was supported by an affidavit by the applicant’s solicitor which identified the appeal and the orders made, and exhibited a copy of the court’s order and reasons. It was not accompanied by any submissions, and it did not identify any reasons for granting the certificate. Despite invitation, no submissions have been forthcoming from the applicant’s solicitors.

Supreme Court Practice Direction No. 1 of 2005 stipulates that:

“An application for an indemnity certificate and accompanying certificates will be made either orally at the appeal hearing or parties may indicate that they intend to provide written submissions to the court within seven days of judgment of the court”.

Plainly enough, neither happened here.

In Lamb v Brisbane CC & Anor[1] such an application was made almost 12 months after judgment was given. Keane JA, with whom I agreed, said this:

“While the Court has a discretion to grant a certificate notwithstanding non-compliance with the time limits in the Practice Direction, and the Court's discretion is a wide one, the lapse of such a long time could reasonably be expected to result in the refusal of a certificate unless there are strong grounds for granting the certificate. It is not in the interests of the due administration of justice that the Court should be required to devote time to the review of the circumstances of decisions given long ago by stale applications for indemnity certificates.” (Citations omitted.)

[1] [2008] QCA 109.

Here, the only explanation for the delay is that the assessment of costs took place only this year. That, of course, is beside the point; the making of an application is in no way dependent on any steps having been taken towards assessment of the costs. There is no explanation for the delay which is twice that in Lamb, and the deficiency is compounded by the absence of any submission as to why the matter warrants a certificate.

I would refuse the application for an indemnity certificate.

DOUGLAS J: I agree with the reasons of Holmes JA and the order proposed by her.

The appeal in Jamieson v Beattie involved a dispute concerning the granting of an indemnity certificate in relation to appeal costs under the Queensland Appeal Costs Fund. The Court of Appeal was tasked with deciding whether the certificate should be granted to the applicant, who had made the application nearly two years after the judgment was given, without providing any submissions explaining the delay. The central legal issue was whether, in the absence of any explanation for the delay, the court should grant the indemnity certificate to the applicant.

The court examined the general principles governing the grant or refusal of an indemnity certificate. It noted that the primary consideration was whether the delay in applying for the certificate was justified or excusable. The applicant in this case had made no attempt to provide any submissions or explanations for the significant delay in making the application. The court held that the absence of any submissions or justification for the delay meant that the application should be refused. It was not appropriate for the court to grant the certificate without a proper explanation for such a substantial delay.

Consequently, the Court of Appeal refused the application for an indemnity certificate. The applicant was denied the relief sought, as the court found no justification for the nearly two-year delay in making the application. The court emphasised the importance of providing adequate explanations for significant delays in legal proceedings and the impact this has on the granting of such certificates. The orders made by the court were clear: the application for an indemnity certificate was refused.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

CITATION:	Jamieson v Beattie [2008] QCA 358
PARTIES:	WILLIAM ROBINSON JAMIESON (respondent/applicant) v PETER BEATTIE (appellant/ respondent)
FILE NO/S:	Appeal No 109 of 2006 DC No 1 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Application for Indemnity Certificate
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	14 November 2008
DELIVERED AT:	Brisbane
HEARING DATE:	Heard on the papers
JUDGES:	Holmes JA and Douglas J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for Indemnity Certificate Refused
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – APPEAL COSTS FUND – POWER TO GRANT INDEMNITY CERTIFICATE – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where application for indemnity certificate made almost two years after judgment given in the Court of Appeal – where applicant furnished no submissions in explanation of the delay – whether an indemnity certificate should be granted Appeal Costs Fund Act 1973 (Qld), s 15(1) Lamb v Brisbane CC & Anor [2008] QCA 109, applied
SOLICITORS:	Clarke and Kann for the applicant Baker Johnson Lawyers for the respondent