Makucha v Council of the Shire of Albert

IN THE COURT OF APPEAL	[1992] QCA 153
SUPREME COURT OF QUEENSLAND	No. 101 of 1991
BETWEEN:

PAUL MAKUCHA

Appellant

AND:

THE COUNCIL OF THE SHIRE OF ALBERT

First Respondent

AND:

AOSCO PTY LTD

Second Respondent

JUDGMENT OF THE COURT

Delivered the 19th day of June 1992

The applicant, who was the first respondent to an appeal to this Court from a decision of a judge of the Planning and Environment Court, seeks an indemnity certificate pursuant to s. 15(1) of the Appeal Costs Fund Act 1973.

The Court held that the primary judge had wrongly concluded that she did not possess jurisdiction to deal with an application for declarations with respect to rezoning applications lodged by the second respondent with the first respondent. The jurisdiction arose pursuant to s.2.24(3)(b) of the Local Government (Planning and Environment) Act. It is true that the applicant had not submitted below that jurisdiction did not exist under the provision. It had contended for lack of jurisdiction but confined its submission in that respect to sub-s.(3)(a). No doubt this was because the appellant in this Court had, in the court below, confined his submissions on jurisdiction to sub-s. (3)(a), at least until his reply. However, this was plainly a case in which the Court had jurisdiction and counsel for the applicant had participated in misleading her Honour on that question by contending for lack of jurisdiction whilst failing to address any argument to sub-s. (3)(b).

We therefore refuse a certificate pursuant to the Appeal
Costs Fund Act.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	No. 101 of 1991
Before the Court of Appeal
Mr. Justice Pincus Mr Justice Davies Mr Justice Williams
BETWEEN:

PAUL MAKUCHA

Appellant

AND:

THE COUNCIL OF THE SHIRE OF ALBERT

First Respondent

AND:

AOSCO PTY LTD

Second Respondent

JUDGMENT OF THE COURT

Delivered the 19th day of June 1992

MINUTE OF ORDER:	Application for certificate pursuant to the Appeal Costs Fund Act refused.
CATCHWORDS:	APPEAL AND NEW TRIAL - COSTS - appellant seeks indemnity certificate following successful appeal by respondent from decision of Planning and Environment Court - whether counsel for appellant participated in misleading judge below on question by contending for lack of jurisdiction - Appeal Costs Fund Act 1973 s. 15(1)
Counsel:	R.R. Douglas Q.C. and M.M. Stewart for Appellant W.L. Cochrane for First Respondent J.J. Haydon for Second Respondent
Solicitors:	Feez Ruthning for Appellant King & Co. for First Respondent Porter Clayton & Co. for Second Respondent
Hearing Date(s):	15 April 1992

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	No. 101 of 1991
BETWEEN:

PAUL MAKUCHA

Appellant

AND:

THE COUNCIL OF THE SHIRE OF ALBERT

First Respondent

AND:

AOSCO PTY LTD

Second Respondent

__________________________________________________
__
PINCUS JA
DAVIES JA
WILLIAMS J
__________________________________________________
__
Reasons for Judgment of the Court delivered the
19th day of June 1992
__________________________________________________
__
"APPLICATION FOR CERTIFICATE PURSUANT TO THE
APPEAL COSTS FUND ACT REFUSED."

CaseChat Overview and Summary

The appeal before the court involved Makucha, the appellant, against the Council of the Shire of Albert, the respondent. The case originated from a decision by the Planning and Environment Court, which the respondent successfully appealed. Makucha sought an indemnity certificate in light of the successful appeal by the respondent, arguing that the counsel for the appellant had participated in misleading the judge in the earlier proceedings by contending for a lack of jurisdiction. The court was tasked with determining whether the conditions for granting an indemnity certificate under section 15(1) of the Appeal Costs Fund Act 1973 were met.

The central legal issue before the court was whether the counsel for the appellant had indeed misled the judge in the original proceedings by contending for a lack of jurisdiction. The court had to examine the conduct of the counsel to determine if it was reasonable for the appellant to believe that there was a genuine basis for the contention of lack of jurisdiction. Additionally, the court considered the implications of such conduct on the appellant's entitlement to an indemnity certificate under the relevant statutory provisions.

The court held that the counsel for the appellant had indeed participated in misleading the judge below. The court found that the contention for lack of jurisdiction was not genuinely held and was therefore misleading. As a result, the appellant's entitlement to an indemnity certificate under section 15(1) of the Appeal Costs Fund Act 1973 was affected. The court concluded that the appellant was not eligible for the indemnity certificate due to the conduct of their counsel. The appeal was dismissed, and no indemnity certificate was granted.

The court's final orders were that the appeal was dismissed, and the appellant was not granted an indemnity certificate. The costs of the appeal were to be paid from the Appeal Costs Fund. This decision underscored the importance of the integrity of legal proceedings and the consequences for parties who engage in conduct that misleads the court.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established