Sergi v Jurcevic (No 2)

[1999] NSWCA 296

CITATION:	Sergi v Jurcevic (No 2) [1999] NSWCA 296
FILE NUMBER(S):	CA 40740/97
HEARING DATE(S):	Considered on the papers
JUDGMENT DATE:	22 September 1999
PARTIES :	G P & A Sergi - Appellants Slavko Jurcevic - Respondent
JUDGMENT OF:	Beazley JA; Giles JA; Davies AJA

LOWER COURT JURISDICTION:	Compensation Court
LOWER COURT FILE NUMBER(S) :	4850/94
LOWER COURT JUDICIAL OFFICER:	O'Toole CCJ

COUNSEL:	G P McNally - Appellants No appearance - Respondent
SOLICITORS:	Hunt & Hunt, Canberra- Appellants No appearance- Respondent
CATCHWORDS:	COSTS - Suitors Fund Act 1951 - indemnity certificate.
DECISION:	Refuse appellant's application, and make no order as to the costs of the application for determination or of the appeal.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40740/97
CC 4850/94

BEAZLEY JA
GILES JA
DAVIES AJA

Wednesday, 22 September 1999

G P & A SERGI v Slavko JURCEVIC (No 2)

JUDGMENT
(On costs)

1    THE COURT: Judgment in this appeal was given on 22 July 1999. The appellant was given liberty to apply for an order in relation to the costs of the application for determination or of the appeal. It made application, and provided written submissions with a view to a decision without oral argument.

2    As we read the written submissions, the application was limited to an application for the costs of the appeal. It was acknowledged that, where the respondent had not appeared to oppose the relief claimed by the appellant either at first instance or on appeal, the court might consider it inappropriate to order that he pay those costs. But it was said that the appellant should not be left out of pocket when O’Toole CCJ had been found to be in error, and we were invited nonetheless to make an order for costs against the respondent accompanied by an order that he have a certificate under the Suitors Fund Act 1951 (“the Act”); the appellant proffered an undertaking to the Court that it would not attempt to recover from the respondent costs exceeding those certified as payable pursuant to that Act.

3    Section 6(1) of the Act provides that if an appeal to the Supreme Court on a question of law or fact succeeds, the Supreme Court may, on application, grant to the respondent to the appeal an indemnity certificate in respect of the appeal. Section 6(2) of the Act provides -

“(2) Where a respondent to an appeal has been granted an indemnity certificate, the certificate shall entitle the respondent to be paid from the Fund -
(a) an amount equal to the appellant’s costs of -
(i) the appeal in respect of which the certificate was granted …
ordered to be paid and actually paid by the respondent: Provided that where the Director-General is satisfied that the respondent is unable through lack of means to pay the whole of those costs or part thereof or that payment of those costs or part thereof would cause the respondent undue hardship, or where those costs or part thereof have not been paid by the respondent and the Director-General is satisfied that the respondent cannot be found after such strict inquiry and search as he may require or that the respondent unreasonably refuses or neglects to pay them, the Director-General may, if so requested by the appellant … direct in writing that an amount equal to those costs or to the part of those costs not already paid by the respondent be paid from the Fund for and on behalf of the respondent to the appellant and thereupon the appellant shall be entitled to payment from the Fund in accordance with the direction …”.

4    The appellant submitted that, although the respondent had not applied for an indemnity certificate, it could apply, that s 6(2) provided a means of direct access to the Fund, and that the respondent would be protected from prejudice by the undertaking.

5    We do not think it necessary to explore whether an appellant can apply for the grant of an indemnity certificate to the respondent, or how s 6(2) might operate to provide direct access to the Fund. The grant of an indemnity certificate presupposes that the respondent has been ordered to pay the appellant’s costs of the appeal. We do not think such an order should be made so that the appellant can get access to the Fund. The order must be an order appropriate to be made independently of any question of access to the Fund. In the circumstances revealed in the reasons delivered on 22 July 1999, we do not think it appropriate to order that the respondent pay the appellant’s costs of the appeal. The appellant’s anticipatory acknowledgment was correct.

6    We therefore refuse the appellant’s application, and make no order as to the costs of the application for determination or of the appeal.

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