Makucha v Council of the Shire of Albert

[1992] QCA 153

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

__________________________________________________

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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."