Davis v Davis [1996] QCA 97

1 COURT OF APPEAL [1996] QCA 097 PINCUS JA McPHERSON JA AMBROSE J Appeal No 161 of 1995 GORDON EDGERTON ALLAN DAVIS Appellant/Defendant and WINIFRED DAVIS Respondent/Plaintiff BRISBANE ..DATE 25/03/96 JUDGMENT -- 1 of 4 -- 250396 D.1 T2/JJD M/T COA54/96 2 JUDGMENT PINCUS JA: This is an appeal against a judgment of the District Court which has been discontinued. The learned primary Judge decided to make no order as to costs and that is not challenged. The question which arises here is the fate of the costs of the appeal. We have been told that through some mishap, although the primary Judge, when he indicated on 26 May 1995 what course he proposed to take, did not then deliver reasons, reasons were in fact obtained dated on that date, but delivered at a later time. That is, the reasons, according to the information we have been given, seem to have been pre-dated, which is odd. It seems that the reasons were in fact obtained in June 1995 by the solicitors for the respondent. The purpose of obtaining them was to carry out the steps which were necessary to implement what the Judge had indicated would be the order of the Court. However, the reasons were then obtained by one side only. On 22 September, the appellant's outline was delivered; the basis of the outline and the basis of the appeal was the absence of reasons. On 19 October, the respondent's outline was delivered, which made it clear that the respondent, at least, had the Judge's reasons. Those reasons were subsequently obtained by the appellant's solicitors, a decision was made not to pursue the appeal and it has in fact been discontinued. Counsel for the appellant, Mr Hackett, has argued that the Court should make an order under the Appeal Costs Fund Act, -- 2 of 4 -- 250396 D.1 T2/JJD M/T COA54/96 3 JUDGMENT on the basis that the matter is covered by section 21 of that Act, the argument being that section 21 gives the Court a discretion to grant or refuse an indemnity certificate in circumstances not covered by section 15. It appears to me that the better view is that the power to give an indemnity certificate is given by and confined to section 15 and that section 21 is supplementary to section 15. That is, I am of the opinion that the appeal not having succeeded, there is no power to grant an indemnity certificate. On that basis, the parties are still not as one as to what should occur; Mr Hackett contending that the proper course would be to make no order as to costs; whereas Mr Robinson for the respondent says that the costs should go to his side. It is my view that from on or about 19 October 1995 it must have been clear to the appellant that reasons did exist and, as I mentioned, they were subsequently obtained. However, up to that date, there is some injustice, as it seems to me, in ordering the appellant to pay costs. The basis upon which the appeal had been launched had become falsified in June, but apparently not to the appellant's knowledge, because no copy of the reasons reached them until some months later. The view which I take, then, is that the appellant should be ordered to pay the respondent's costs of the appeal, but only those costs which were incurred after the date on which it must have become clear that there were reasons in existence. That is, I would order that the appellant pay -- 3 of 4 -- 250396 D.1 T2/JJD M/T COA54/96 4 JUDGMENT the respondent's costs incurred after 19 October 1995, but otherwise make no order as to costs. McPHERSON JA: I agree. AMBROSE J: I agree. PINCUS JA: That will be the order of the Court. ----- -- 4 of 4 --