Weis Restaurant Toowoomba v Gillogly

[2013] QCA 49

SUPREME COURT OF QUEENSLAND

CITATION:

Weis Restaurant Toowoomba v Gillogly [2013] QCA 49

PARTIES:

WEIS RESTAURANT TOOWOOMBA
(applicant)
v
ALLAN EDWARD GILLOGLY
(respondent)

FILE NO/S:

Appeal No 6461 of 2012
DC No 3 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil) – Further Order

ORIGINATING COURT:

District Court at Toowoomba

DELIVERED ON:

15 March 2013

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Margaret McMurdo P and Fraser JA and Daubney J
Judgment of the Court

ORDER:

The application for an indemnity certificate is refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL PRACTICE AND PROCEDURE – QUEENSLAND – APPEAL COSTS FUND – POWER TO GRANT INDEMNITY CERTIFICATE – WHEN REFUSED – where the Court ordered that the appellant have leave to appeal and that its appeal be allowed – where the Court set aside the primary court’s orders and dismissed the respondent’s application to extend the limitation period for his proposed personal injuries action – where the Court ordered the respondent to pay the appellant’s costs – where the respondent has applied for the grant of an indemnity certificate under s 15(1) Appeal Costs Fund Act 1973 (Qld) – where primary judge erred in extending the limitation period whether an application for an indemnity certificate should be allowed

Appeal Costs Fund Act 1973 (Qld), s 15(1)
Limitation of Actions Act 1974 (Qld), s 31

Lauchlan v Hartley [1980] Qd R 149, considered

COUNSEL:

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

SOLICITORS:

Sparke Helmore for the applicant
Shine Lawyers for the respondent

1. THE COURT: On 15 February 2013, this Court ordered that the appellant have leave to appeal and that its appeal be allowed.  This Court set aside the primary court's orders and instead dismissed the respondent's application to extend the limitation period for his proposed personal injuries action.  The Court also ordered that the respondent pay the appellant's costs. 

1. The respondent has applied for the grant of an indemnity certificate under s 15(1) Appeal Costs Fund Act 1973 (Qld). That section relevantly provides:

"(1)       Where an appeal against the decision of a court –

(a)       to the Supreme Court;

…

on a question of law succeeds, the Supreme Court may, upon application made in that behalf, grant to any respondent to the appeal an indemnity certificate in respect of the appeal."

1. The Court found that the primary judge erred in characterising the legal identity of the owner of the restaurant where the respondent was injured as a material fact of a decisive character under s 31 Limitation of Actions Act 1974 (Qld).[1] As a result, the judge's discretion to extend the limitation period under s 31 was not enlivened.[2]  His Honour erred in ordering an extension of the limitation period.  The Court also determined that his Honour's finding that the respondent had taken all reasonable steps to ascertain the legal identity of the owner of the restaurant was not open on the evidence.[3]

   [1]Weis Restaurant Toowoomba v Gillogly [2013] QCA 21, [42].

   [2]Above, [43].

   [3]Above, [48]-[51].

1. This Court has a unfettered discretion to exercise in determining whether to grant an indemnity certificate under s 15(1) Appeal Costs Fund Act.  The respondent rightly points out that the appeal succeeded on a question of law and that the appellant was successful on only two of its four grounds of appeal.  But we cannot accept the respondent's contention that this case is analogous to Lauchlan v Hartley.[4]  There, the respondent's contentions, although wrongly accepted by the primary judge, were fairly arguable.  In the present case, whilst we do not criticise the respondent for exploring all possible avenues to advance his claim and acknowledge that his contentions central to this appeal were accepted by the primary judge, those contentions must be described as unreasonably optimistic.  We remain unpersuaded that the certificate should be granted.

   [4][1980] Qd R 149.

ORDER:

The application for an indemnity certificate is refused.