Weightman v Gold Coast City Council

[2002] QCA 287

SUPREME COURT OF QUEENSLAND

CITATION:

Weightman v Gold Coast City Council & Anor [2002] QCA 287

PARTIES:

ANNE WEIGHTMAN
(appellant/applicant)
v
GOLD COAST CITY COUNCIL
(first respondent/first respondent)
GORDON LAKELANDS PTY LTD ACN 088 335 737
(second respondent/second respondent)

FILE NO/S:

Appeal No 2452 of 2002
P& E Appeal No 4246 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

Planning and Environment Appeal – Further Order

ORIGINATING COURT:

Planning and Environment Court at Brisbane

DELIVERED ON:

Judgment delivered 28 June 2002.  Further order delivered 9 August 2002

DELIVERED AT:

Brisbane

HEARING DATE:

26 April 2002

JUDGES:

de Jersey CJ, McMurdo P and Atkinson J
Joint reasons for judgment of de Jersey CJ and Atkinson J; separate reasons of McMurdo P, dissenting in part

ORDER:

The respondents pay the applicant’s costs of the application for leave to appeal and the appeal to be assessed on a standard basis.

CATCHWORDS:

PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – COSTS OUT OF A FUND – WHEN COSTS ALLOWED OUT OF A FUND – OTHER CASES – where application for certificate under s 15(1) Appeal Costs Funds Act 1973 (Qld) – whether certificate ought to be granted

Appeal Costs FundAct 1973 (Qld), s 15, s 15(1)

COUNSEL:

A N Skoien for the applicant
B G Cronin for the first respondent

M D Hinson SC, with S M Ure, for the second respondent

SOLICITORS:

Creagh Weightman for the applicant

McDonald Balanda & Associates for the first respondent
Hickey Lawyers for the second respondent

1. de JERSEY CJ and ATKINSON J:  On 28 June 2002, the Court granted an application for leave to appeal, allowed the appeal and ordered that this matter be remitted back to the learned primary judge to be determined in accordance with law.  The question of costs was reserved.  The applicant has asked for her costs of the application for leave to appeal and the appeal to be assessed on a standard basis.  This application is not opposed and is the appropriate order.

1. The respondents have submitted that this is an appropriate case for the grant of an indemnity certificate pursuant to s 15(1) of the Appeal Costs FundAct 1973 as the application concerned a question of law and that any errors of law were not influenced by the submissions of the respondents. The second respondent also argued that it should have a certificate as the Chief Justice, as a member of the Court of Appeal hearing the matter, had been of the view that the learned primary judge’s decision should not be disturbed.

1. The occasion for the exercise of the discretion to consider the award of an indemnity certificate arises as the appeal concerned a question of law.  However, the arguments advanced by the respondent are not persuasive that this is an occasion on which an indemnity certificate should be ordered.  The learned primary judge decided the case having regard to the submissions made, and the material put before him, by the parties.  This was an ordinary application for leave to appeal where the respondents were unsuccessful and should be ordered to pay the applicant’s costs.

Orders

1.          The respondents pay the applicant’s costs of the application for leave to appeal and the appeal to be assessed on a standard basis.

1. McMURDO P: I would order that the respondents pay the applicant’s costs of and incidental to the application for leave to appeal and the appeal to be assessed. I would also grant the respondents an indemnity certificate under s 15 Appeals Costs Fund Act 1973 (Qld).