New South Wales Land and Housing Corporation v Quinn (No 2)

1. [1]

   THE COURT: On 6 December 2016, this Court handed down its decision in New South Wales Land and Housing Corporation v Quinn [2016] NSWCA 338 and made orders allowing the appellant’s appeal, setting aside an order made by the District Court judge on 18 March 2016 and remitting the matter to the District Court for determination. The Court ordered each party to pay its or his own costs.

2. [2]

   By notice of motion filed 20 December 2016, the respondent (Mr Quinn) has sought an order pursuant to s 6(1) of the Suitors’ Fund Act 1951 (NSW) (the Act) that he be granted an indemnity certificate in respect of the appeal. The appellant, NSW Land and Housing Corporation, neither consents to nor opposes such an order but filed brief submissions for the assistance of the Court.

3. [3]

   Section 6 of the Act provides, relevantly, as follows:

4. [4]

   In the present case the three prerequisites for the exercise of power under s 6(1) are satisfied in that there was an appeal to this Court; it was against a decision of a court (the District Court); and it was on a question of law.

5. [5]

   As this Court did not order Mr Quinn to pay the appellant’s costs of the appeal, if a certificate were to be granted no entitlement under s 6(2)(a) would arise. However, s 6(2)(b) would be applicable, as was recognised in Robinson v Zhang [2005] NSWCA 439 where Basten JA, with whom Barr and Hall JJ agreed, said (at [38]):

6. [6]

   There is a discretion whether to grant or refuse an indemnity certificate (s 6(5)). That discretion is to be exercised by reference to the purpose of the Act which was said, in Mir Bros Developments Pty Ltd v Atlantic Constructions Pty Ltd (1985) 1 NSWLR 491 (at 499) to be to “protect litigants who, for no fault of their own, would otherwise suffer the burden of costs by reason of what are found to be legal errors of subordinate courts”. (See also Gurnett v Macquarie Stevedoring Co Pty Ltd (No 2) (1956) 95 CLR 106 at 112-113; [1956] HCA 29 at [9] (Dixon CJ) (Gurnett).)

7. [7]

   In R v Hookham (No 2) (1993) 32 NSWLR 345, Priestley JA said (at 346) that the reasoning behind the Act must be to the general effect that the court system, in what has happened prior to the appeal being upheld, has made a mistake and that there will be at least some circumstances in which costs caused by the fault of the system should not be visited on the respondent. His Honour said:

8. [8]

   In Anderson Stuart v Treleaven [2000] NSWSC 536 Santow J, as his Honour then was, noted (at [18]) that:

9. [9]

   Examples of cases where the Court has considered that the discretion ought be exercised against the grant of such a certificate include Gurnett (where Dixon CJ said that: no considerations of law had affected the matter; it was simply a question whether the evidence adduced was enough to enable the jury to draw an inference of fact; and counsel had taken a course which involved an obvious risk and turned out badly); Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 (due to the way in which the case had been conducted by the party in question) and Allard v Murwillumbah Bowling Club Ltd [1976] 1 NSWLR 275 (where the respondent had caused the lower court to err).

10. [10]

    In the present case Mr Quinn submits that the conduct of the proceedings by him in the District Court played no role in causing the Court below to fall into error on the issue of jurisdiction and emphasises that what he had sought in the District Court was a determination of the merits of the issues canvassed in the hearing. He submits that he was not negligent or at fault in not seeking relief by way of cross-claim in the nature of administrative law remedies or in not seeking to transfer the proceedings to the Supreme Court; rather he was, as he was entitled to do, simply defending the proceedings that had been brought against him in the forum chosen by the appellant. He points out that the only order he seeks in the District Court proceedings is that they be dismissed.

11. [11]

    Mr Quinn accepts that he actively participated in the appeal in this Court, arguing in support of the decision of the District Court. He says that he did so because he had the benefit of a costs order below which he has now lost as a result of the appeal but that he should not be penalised for this. He says defence of the impugned judgment below did not seek to argue the unarguable and that his submissions in this Court were properly made.

12. [12]

    The appellant does not take issue with the submissions made by Mr Quinn as to his conduct of the proceedings in the District Court or in this Court. However, the appellant cavils with the suggestion by Mr Quinn that its appeal was a “test case” (though accepting that there were a number of matters pending in which the resolution of the question of jurisdiction would be relevant). The appellant says that in any event the stated reasons of Mr Quinn for actively participating in and opposing the appeal were unrelated to whether this was a test case.

Conclusion

1. [13]

   In circumstances where Mr Quinn had not put to the Court below, incorrectly, that it did not have jurisdiction (rather, he sought that the Court below exercise the jurisdiction and determine the case on the merits) and there has been nothing in his conduct of the proceedings below or in this Court that would warrant withholding a certificate under the Act, such a certificate should be granted. Although not commenced as an application to vary the orders made by this Court pursuant to r 36.16 of the Uniform Civil Procedure Rules 2005 (NSW), Mr Quinn’s notice of motion was filed within 14 days of the delivery of judgment and making of orders in the matter and should be treated as such. As to the costs of the motion, Mr Quinn seeks an order, which the appellant does not oppose, that each party pay its own costs.

2. [14]

   Accordingly, the Court orders:

   1. (1)

      The respondent be granted a certificate under the Suitors’ Fund Act 1951 (NSW) in respect of the costs of the appeal.

   2. (2)

      Each party pay its or his own costs of the notice of motion filed 20 December 2016.