Caltabiano v Electoral Commission of Qld & Anor (No 2) [2009] QCA 222

SUPREME COURT OF QUEENSLAND CITATION: Caltabiano v Electoral Commission of Qld & Anor (No 2) [2009] QCA 222 PARTIES: ANDREA MICHELE CALTABIANO (applicant/appellant) v ELECTORAL COMMISSION OF QUEENSLAND (first respondent/first respondent) STEVEN ANDREW KILBURN (second respondent/second respondent) FILE NO/S: Appeal No 6093 of 2009 SC No 3921 of 2009 DIVISION: Court of Appeal PROCEEDING: General Civil Appeal – Further Order ORIGINATING COURT: Court of Disputed Returns at Brisbane DELIVERED ON: Judgment delivered 26 June 2009 Further order delivered 31 July 2009 DELIVERED AT: Brisbane HEARING DATE: Heard on the papers JUDGES: Muir and Fraser JJA and Fryberg J Separate reasons for judgment of each member of the Court, each concurring as to the order made ORDER: That the second respondent be granted an indemnity certificate in respect of the appeal pursuant to s 15(1) of the Appeal Costs Fund Act 1973 (Qld). CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – APPEAL COSTS FUND – POWER TO GRANT INDEMNITY CERTIFICATE – WHEN GRANTED – where proceedings involved an appeal from a decision of the Court of Disputed Returns – where appeal court ordered the second respondent to pay the appellant’s costs – where the appeal involved an “important and fairly arguable question of law” – whether an indemnity certificate should issue Appeal Costs Fund Act 1973 (Qld), s 15(1) Lauchlan v Hartley [1980] Qd R 149, applied -- 1 of 2 -- 2 COUNSEL: P Dunning SC, with P Baston, for the appellant P A Freeburn SC for the first respondent D C Rangiah SC, with M L Grimshaw, for the second respondent SOLICITORS: RiverLegal for the appellant Crown Law for the first respondent Carne Reidy Herd for the second respondent [1] MUIR JA: I agree with the reasons of Fraser JA and with the order he proposes. [2] FRASER JA: On 26 June 2009 the Court allowed Ms Caltabiano's appeal, set aside the orders made by the primary judge, and instead made orders dismissing the applications filed by the Electoral Commission and Mr Kilburn which had sought the summary dismissal of Ms Caltabiano's originating application.1 Pursuant to a direction then made by the Court, Mr Kilburn has provided a written submission in support of his application for an indemnity certificate under s 15(1) of the Appeal Costs Fund Act 1973 (Qld) in relation to this Court's order that Mr Kilburn pay Ms Caltabiano's costs of and incidental to the appeal. [3] I accept the submission made for Mr Kilburn that the case is one within the first category described in Lauchlan v Hartley [1980] Qd R 149, in which both sides of the debate in the appeal were fairly arguable. Whether or not, as Fryberg J held,2 Ms Caltabiano's success in the appeal depended upon the Court developing the law of appropriation, the appeal did involve an important and fairly arguable question of law. It is, in my view, an appropriate case for Mr Kilburn to obtain the indemnity against his costs’ liability which is provided for in the Appeal Costs Fund Act 1973 (Qld). I would order that the second respondent be granted an indemnity certificate in respect of the appeal pursuant to s 15(1) of the Appeal Costs Fund Act 1973 (Qld). [4] FRYBERG J: I agree with the reasons of Fraser JA. 1 Caltabiano v Electoral Commission of Qld & Anor [2009] QCA 182. 2 [2009] QCA 182 at [131]. -- 2 of 2 --