Entsch v Smith & Anor [1992] QCA 143

IN THE COURT OF APPEAL [1992] QCA 143 SUPREME COURT OF QUEENSLAND No. 2709 of 1989 BETWEEN: GRAHAM ENTSCH (Plaintiff) Respondent AND: MICHAEL A. SMITH (First Defendant) Appellant AND: DOUGLAS KERR (Second Defendant) Appellant REASONS FOR JUDGMENT OF THE COURT Delivered the 15th day of June 1992 This appeal was heard on 11 and 12 February 1992 and judgment in the appeal was given on 6 March 1992. No application was made by the respondent for an indemnity certificate pursuant to s.15(1) of the Appeal Costs Fund Act 1973 before the conclusion of argument as required by Practice Direction No. 2 of 1982. Nor was any such application made on the date judgment was given. On that date however counsel for the respondent sought leave to make such an application. He was informed by Mr Justice Davies, who delivered the judgment of the court, that no leave was necessary. An application was eventually made on 6 April 1992. No explanation was given for this delay although reasons were given as to why such a certificate had not been sought -- 1 of 6 -- 2 before the conclusion of oral argument, as required by the Practice Direction. Those reasons were uncertainty as to the practice to be adopted by the Court of Appeal, failure of the respondent's solicitor to advert to the Practice Direction, a change of counsel the day before the commencement of the hearing, an expectation that the appeal would fail and simply oversight. We need hardly say that none of these is a satisfactory explanation. However, we would be reluctant to deny a certificate, notwithstanding the lack of satisfactory explanation for the failure of the respondent to make this application before the close of oral argument and the absence of any explanation for the further delay of a month after judgment, if the respondent were otherwise entitled to one. However, there are two reasons why, in this case, such an application should, in any event, be refused. The first is that the substantial questions in the appeal were questions of fact; whether, if paid an additional $60,000, the respondent's wife would have been prepared to forego her right to make a later application for further payment and consent to a different procedure which would have provided the respondent with the desired finality in the Family Court proceedings; and whether that Court would then have been satisfied that the total payment was "just and equitable" or "proper". The second is that the trial judge failed to consider these -- 2 of 6 -- 3 questions of fact because he was led into error by evidence adduced by the respondent of a procedure in the Family Court pursuant to which a registrar would enter a consent order without enquiring whether it was "just and equitable" to do so, and a submission based upon that evidence that a consent order could properly have been obtained (and consequently could not have been set aside) without the need for consideration of that question by the Court. For these reasons in our view the application should be refused. -- 3 of 6 -- IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND No. 2709 of 1989 Before the Court of Appeal The President Mr Justice Davies Mr Justice Bryne BETWEEN: GRAHAM ENTSCH (Plaintiff) Respondent AND: MICHAEL A. SMITH (First Defendant) Appellant AND: DOUGLAS KERR (Second Defendant) Appellant REASONS FOR JUDGMENT OF THE COURT Delivered the 15th day of June 1992 MINUTE OF ORDER: Application by the respondent for an indemnity certificate pursuant to s.15(1) of the Appeal Costs Fund Act 1973 refused CATCHWORDS: APPEAL AND NEW TRIAL - COSTS - appellant seeks an indemnity certificate despite failure to apply before conclusion of oral argument - whether sufficient reason to deny certificate were appellant otherwise entitled - whether substantial questions on appeal ones of fact - whether judge led into error - Appeal Costs Fund Act 1973 s. 15(1) Counsel: P.A. Keane Q.C. with him P. O'Shea for the Appellants R. Bourke for the Respondent -- 4 of 6 -- 5 Solicitors: Corrs Chambers Westgarth for the Appellant Thynne & Macartney t/a for Primrose Couper Cronin Rudkin for the Respondent Hearing Date(s): 11 and 12 February 1992 -- 5 of 6 -- IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND No. 2709 of 1989 BETWEEN: GRAHAM ENTSCH (Plaintiff) Respondent AND: MICHAEL A. SMITH (First Defendant) Appellant AND: DOUGLAS KERR (Second Defendant) Appellant __________________________________________________ __ THE PRESIDENT DAVIES JA BYRNE J __________________________________________________ __ Reasons for Judgment of the Court delivered the 15th day of June 1992 __________________________________________________ __ "APPLICATION REFUSED" __________________________________________________ __ -- 6 of 6 --