Blackwood v Hinder (No. 2)

[2018] QDC 44

DISTRICT COURT OF QUEENSLAND

CITATION:

Blackwood v Hinder (No. 2) [2018] QDC 44

PARTIES:

Simon Blackwood

(Appellant)

v

Collin Hinder

(Respondent)

FILE NO/S:

4881/15

DIVISION:

Civil

PROCEEDING:

Appeal under section 222 of the Justices Act

ORIGINATING COURT:

Brisbane Industrial Magistrates Court

DELIVERED ON:

27 March 2018

DELIVERED AT:

Ipswich

HEARING DATE:

On the papers

JUDGE:

Horneman-Wren SC DCJ

ORDER:

1.   The respondent be granted an indemnity certificate under the Appeal Costs Fund Act 1973 in respect of the appeal.

CATCHWORDS:

APPEAL – INDUSTRIAL MAGISTRATES COURT – WORKER COMPENSATION AND REHABILITATION – where respondent seeks an indemnity certificate – where respondent successfully resisted two of the three contentions advance by the appellant in substantive proceeding – where respondent’s unsuccessful argument on the third contention was “fairly arguable” – whether the respondent should be granted an indemnity certificate pursuant to s15(2) of the Appeal Costs Fund Act1973

CASES:

Blackwood v Hinder [2017] QDC 239

Lauchlan v Hartley [2980] QdR 149

LEGISLATION:

Appeal Costs Fund Act 1973

Worker’s Compensation and Rehabilitation Act 2003

COUNSEL:

Written submissions of Mr Maher of Counsel for the Respondent

SOLICITORS:

Crown Law (Appellant)

Carter Capner Law (Respondent)

1. The appellant successfully appealed from the decision of an Industrial Magistrate for reasons explained in the substantive judgment.[1]

   [1]Blackwood v Hinder [2017] QDC 239.

1. The appellant does not seek costs.  The respondent seeks an indemnity certificate under the Appeal Costs Fund Act 1973 (ACFA).  An indemnity certificate would entitle the respondent to be paid from the fund an amount equal to his costs of the appeal as assessed or agreed.[2]

   [2]Section 16(1)(b)(i) ACFA.

1. Section 15(2) of the ACFA provides:

“Where an appeal against the decision of a court to the District Court on a question of law succeeds, the District Court may, upon application made in that behalf, grant to any respondent to the appeal and indemnity certificate in respect of the appeal.”

1. The appeal, essentially, concerned a question of law.  Particularly, the question of law was whether, on a proper construction of section 579(3) of the Worker’s Compensation and Rehabilitation Act 2003, knowledge of Workcover as referred to in that provision extends to that of its employees.  There was a factual question which also was decided in the appeal.  That was whether the learned Magistrate erred in determining whether an employee had the requisite knowledge.  However, that issue was one of mixed fact and law and itself was not essential to the resolution of the appeal.[3]

   [3]Paragraph [137] of the reasons.

1. I’m satisfied that the appeal is one to which section 15(2) of the ACFA applies such that the discretion to grant a certificate arises.

1. The respondent was successful in resisting two aspects of the construction of section 579(3) contended for by the appellant.  The first was that the words “whichever is the later” at the end of section 579(3) relate to section 579(3)(a)(b) and not section 579(3)(b)(i)(ii).  That issue was conceded by the appellant in oral argument.[4] 

   [4]Paragraph [76].

1. The second was that the relevant knowledge under section 579(3) was not that of whichever of the Regulator or Workcover brought the proceedings.[5]

   [5]Paragraph [99].

1. On the point of construction upon which the respondent was unsuccessful, the construction he contended for was “fairly arguable” in the sense in which Connolly J used that expression in Lauchlan v Hartley[6] where his Honour said:

“There are many situations in which the state of the law is such that the proposition advanced by the successful party at first instance is fairly arguable even though an appellant court may later disagree with it.  The same may be said of many situations in which is not so much the state of the law but its application to the particular facts or the particular instrument which occasions the difficulties.  If an unsuccessful respondent is only entitled to a certificate where his argument played no part in the decision which is reversed, the application of section 15 will be confined to cases in which the tribunal at first instance has fallen into unaided error.  This would confine its operation within very narrow limits.  There would seem to be no warrant for confining the discretion of the court in this way.  Nor does any decided case so confine it.”

[6][1980] QdR 149 at 150.

1. In the circumstances of this case, I’m of the view that the respondent should be granted an indemnity certificate.

Order

1. The respondent be granted an indemnity certificate under the Appeal Costs Fund Act 1973 in respect to the appeal.