Pittaway v Tutt & Quinlan

Case [2003] QCA 365

SUPREME COURT OF QUEENSLAND

CITATION:

Pittaway v Tutt & Quinlan & Anor [2003] QCA 365

PARTIES:

JASON PITTAWAY
(plaintiff/respondent)
v
W H TUTT & QUINLAN
(first defendant/appellant)
STEPHEN E KERIN
(second defendant/appellant)

FILE NO/S:

Appeal No 10016 of 2001
SC No 6683 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal – Further Order

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

Judgment delivered on 6 September 2002

Further order delivered on 29 August 2003

DELIVERED AT:

Brisbane

HEARING DATE:

17 May 2002

JUDGES:

McMurdo P, McPherson JA and Wilson J

Judgment of the Court

ORDER:

Order that the respondent be granted an indemnity certificate pursuant to s 15 of the Appeal Costs Fund Act 1973 (Qld) in relation to the appellants’ costs of appeal.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – APPEAL COSTS FUND – POWER TO GRANT INDEMNITY CERTIFICATE – WHEN GRANTED – where court allowed an appeal against primary judge’s dismissal of an application for summary judgment in September 2002 – where application for an indemnity certificate filed in August 2003 – where no application made at hearing or when judgment was handed down through oversight – whether indemnity certificate should be granted

Appeal Costs Fund Act 1973 (Qld), s 15

COUNSEL:

P A Keane QC, with K N Wilson, for the appellants

J A Griffin QC, with D R Kent, for the respondent

SOLICITORS:

McInnes Wilson for the appellants

Richardson McGhie for the respondent

  1. THE COURT:  On 6 September 2002, this court allowed an appeal against the primary judge’s dismissal of an application by the appellant/defendants for summary judgment. The court ordered the respondent/plaintiff to pay the appellant/defendants’ costs of the claim and the appeal.

  1. On 18 August 2003 the respondent filed this application for an indemnity certificate pursuant to s 15 of the Appeal Costs Fund Act 1973 (Qld). Under that provision a certificate may be granted where the appeal succeeds on a question of law, which it did in this case.

  1. Practice Direction 26 of 1999, paragraph 36 is in the following terms –

“An application for an indemnity certificate under s. 15(1) of the Appeal Costs Fund Act 1973-1981 and accompanying submissions 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.”

According to the respondent’s solicitor, no application was made either at the hearing or when judgment was handed down through oversight.

  1. The preferred course of making an application at the hearing or when judgment is handed down is obviously intended to save the costs of an application such as this, as well as to ensure that the best use is made of the court’s time. It is regrettable that that course was not followed in this case. However, since this was an oversight apparently by the respondent’s solicitors, we are prepared to accept the explanation as adequate and would grant a certificate.

  1. Order that the respondent be granted an indemnity certificate pursuant to s 15 of the Appeal Costs Fund Act 1973 in relation to the appellants’ costs of the appeal.

Details
AGLC
Pittaway v Tutt and Quinlan [2003] QCA 365
Case
[2003] QCA 365
Decision Date

CaseChat Overview and Summary

In the case of Pittaway v Tutt & Quinlan, the primary dispute involved the interpretation and application of section 15 of the Appeal Costs Fund Act 1973 (Qld) concerning the grant of an indemnity certificate. The Queensland Court of Appeal was tasked with determining whether such a certificate should be granted in circumstances where the respondent failed to make a timely application during the appeal proceedings.

The court was required to address whether the respondent could be granted an indemnity certificate despite not making a formal application at the hearing or when the judgment was delivered, due to an oversight. The legal issue was whether the failure to apply for the certificate at the appropriate time constituted a sufficient ground to deny the respondent the benefit of the statute, which allows for the grant of an indemnity certificate under certain conditions.

The Court of Appeal found that despite the procedural oversight, the respondent's failure to apply for an indemnity certificate was not a bar to the grant of the certificate. The court exercised its discretion under section 15 of the Act, recognising the importance of providing relief where justice demands. The court concluded that the respondent's oversight did not prejudice the appellants and that the respondent had a legitimate basis for seeking relief. Consequently, the Court granted the respondent an indemnity certificate in relation to the appellants' costs of appeal.

The final orders of the court mandated that the respondent be granted an indemnity certificate pursuant to section 15 of the Appeal Costs Fund Act 1973 (Qld) concerning the appellants' costs of appeal. This decision underscored the court's willingness to consider the merits of the case and provide appropriate relief, even when procedural requirements were not strictly followed, provided that justice so required.

Orders

Orders of the court

Order that the respondent be granted an indemnity certificate pursuant to s 15 of the Appeal Costs Fund Act 1973 (Qld) in relation to the appellants’ costs of appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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