Putland v Nowak Summary

SUPREME COURT OF QUEENSLAND

CITATION:

Putland v Nowak [2012] QCA 163

PARTIES:

PAUL PUTLAND
(appellant)
v
JOSEPH NOWAK
(respondent)

FILE NO/S:

Appeal No 11198 of 2011
DC No 69 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal – Further Order

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

Judgment delivered 11 May 2012
Further Order delivered 15 June 2012

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGES:

Holmes and Muir JJA and Mullins J
Judgment of the Court

ORDER:

The respondent be granted an indemnity certificate.

CATCHWORDS:

APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – APPEAL COSTS FUND – POWER TO GRANT AN INDEMNITY CERTIFICATE – WHEN GRANTED – where the appellant’s appeal was allowed with costs – where the appeal was successful due to trial judge’s errors of law – where these errors were not instigated by the respondent – where the respondent applied for an indemnity certificate – whether the respondent should be granted an indemnity certificate

Appeal Costs Fund Act 1973 (Qld)

COUNSEL:

No appearance by the appellant
No appearance by the respondent, the respondent’s submissions were heard on the papers

SOLICITORS:

McDonald Balanda & Associates for the appellant
Cronin Litigation Lawyers for the respondent

THE COURT: On 11 May 2012, this Court made orders which, inter alia, allowed the appellant’s appeal with costs. The appeal succeeded on the basis of errors of law on the part of the trial judge which were not instigated by counsel for the respondent. As was observed in Muir JA’s reasons delivered on 11 May 2012, this is an appropriate case for the grant to the respondent of an indemnity certificate under the Appeal Costs Fund Act 1973.

Accordingly, it is ordered that the respondent be granted an indemnity certificate in respect of appeal 11198/11.

CaseChat Overview and Summary

The case of Putland v Nowak involved an appeal concerning the granting of an indemnity certificate by the Queensland Court of Appeal. The appellant, Putland, had successfully appealed a decision from the lower court, and as a result, was granted costs. Nowak, the respondent, applied for an indemnity certificate to cover these costs, arguing that the appeal was successful due to errors of law made by the trial judge, not because of any actions by Nowak. The primary issue before the court was whether Nowak should be granted an indemnity certificate under these circumstances.

The court considered whether the errors of law that led to the appeal's success were instigated by the respondent or not. The appeal was successful due to the trial judge's errors, which were not initiated by the respondent. Given that the appeal was not based on any fault of the respondent, the court had to decide if the respondent should still be required to bear the costs of the appeal despite not being responsible for the errors of law. The court acknowledged that the respondent, being on the losing side of the appeal, should not be disadvantaged by the trial judge's errors.

The court determined that it had the discretion to grant an indemnity certificate to the respondent, recognising that the respondent was not at fault for the trial judge's errors. It held that the respondent should not be penalised for the trial judge's mistakes and, therefore, should be granted an indemnity certificate. Consequently, the court ruled in favour of the respondent and ordered that the respondent be granted an indemnity certificate to cover the costs of the appeal.

Putland v Nowak

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

CITATION:	Putland v Nowak [2012] QCA 163
PARTIES:	PAUL PUTLAND (appellant) v JOSEPH NOWAK (respondent)
FILE NO/S:	Appeal No 11198 of 2011 DC No 69 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal – Further Order
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	Judgment delivered 11 May 2012 Further Order delivered 15 June 2012
DELIVERED AT:	Brisbane
HEARING DATE:	On the papers
JUDGES:	Holmes and Muir JJA and Mullins J Judgment of the Court
ORDER:	The respondent be granted an indemnity certificate.
CATCHWORDS:	APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – APPEAL COSTS FUND – POWER TO GRANT AN INDEMNITY CERTIFICATE – WHEN GRANTED – where the appellant’s appeal was allowed with costs – where the appeal was successful due to trial judge’s errors of law – where these errors were not instigated by the respondent – where the respondent applied for an indemnity certificate – whether the respondent should be granted an indemnity certificate Appeal Costs Fund Act 1973 (Qld)
COUNSEL:	No appearance by the appellant No appearance by the respondent, the respondent’s submissions were heard on the papers
SOLICITORS:	McDonald Balanda & Associates for the appellant Cronin Litigation Lawyers for the respondent