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ORDER: An Indemnity Certificate be granted to the respondent

CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – ORDERS SET ASIDE OR VARIED – where there was an application for an Indemnity Certificate pursuant to s 15 of the Appeal Costs Fund Act 1973 (Qld) – whether Indemnity Certificate should be granted / Appeal Costs Fund Act 1973 (Qld), s 15(1) / Lachlan v Hartley [1980] Qd R 149, applied

COUNSEL: No appearance for the appellant, no submissions made / R A I Myers for the respondent

SOLICITORS: No appearance for the appellant, no submissions made / Shine Roche McGowan for the respondent

1. WILLIAMS JA: The respondent, who was unsuccessful on the hearing of the appeal, seeks an order pursuant to s 15 of the Appeal Costs Fund Act 1973 (Qld). In my view the arguments for and against ordering such a certificate are fairly evenly balanced, but in the end I would not dissent from the reasoning of Jerrard JA for concluding that a certificate should be granted. I agree with the order proposed by Jerrard JA.

2. JERRARD JA: In this matter the Court gave judgment on 15 June 2007¹. The Court allowed the appeal and ordered that the respondent is to pay the appellant’s costs to be assessed on the standard basis.

3. Subsequently, the respondent sought leave to apply for an Indemnity Certificate pursuant to section 15 of the Appeal Costs Fund Act 1973 (Qld). That section provides:

“Grant of indemnity certificate

(1) Where an appeal against the decision of a court—

(a) to the Supreme Court;

…

on a question of law succeeds, the Supreme Court may, upon application made in that behalf, grant to any respondent to the appeal an indemnity certificate in respect of the appeal.

(2) 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 an indemnity certificate in respect of the appeal.”

4. Leave was granted to make the application by Keane JA on 15 June 2007.

5. In written submissions, the respondent relied on Lachlan v Hartley [1980] Qd R 149 in support of this application. The proposition to be taken from Lachlan v Hartley is that, though an appellate Court may reverse a decision on a point of law, “it will frequently be the case that both sides of the debate are fairly arguable”.² More particularly, when interpreting an instrument, His Honour noted that this process “will often call for a nice balancing of the competing considerations so that the opposing views may be properly regarded as fairly arguable”. ³ This category of cases is to be distinguished from “a different category of case altogether” where the appellate Court is “of the view that there was no basis on which the judgment or order under appeal could properly be made”.⁴ In the former category, an Indemnity Certificate will ordinarily be granted, while in the latter category the Court will be disinclined to grant an Indemnity Certificate.

6. In my view the respondent’s application is not without foundation. This case falls into the first of the categories enumerated by Connolly J. Counsel for the respondent’s written submissions relied on excerpts from the judgment of this matter, which point to the fact that, when construing sections of the Personal Injuries Proceedings Act 2002 (Qld), the respondent had an opposing view that was fairly arguable. I am satisfied that the respondent is correct in this view and order that an Indemnity Certificate be granted in favour of the respondent pursuant to s 15 of the Appeal Costs Fund Act 1973 (Qld).

7. WHITE J: I have read the reasons of Jerrard JA and agree with his Honour that the respondent should be granted a certificate pursuant to s 15 of the Appeal Costs Fund Act 1973 (Qld).