Jackson Nominees P/L v Hanson Building Products P/L [2006] QCA 159

Court of Appeal (Qld)|2006-05-12|Before: Williams and Jerrard JJA and McMurdo J Separate reasons for judgment of, each member of the Court, each concurring as to the order made

[1] WILLIAMS JA: I would not dissent from the order proposed by Jerrard JA that the respondent is entitled to an indemnity certificate. I agree with the order proposed.

[2] JERRARD JA: This Court delivered judgment in this matter on 21 April 2006.[1] This proceeding concerns an application for an indemnity certificate under section 15(1) of the Appeal Costs Fund Act 1973 (Qld) ("the Act"). Section 36 of the Queensland Supreme Court Practice Direction 26 of 1999 provides:

"An application for an indemnity certificate under s.15(1) of the Appeal Costs Fund Act 1973-1981 and accompanying submissions will be made either orally at the appeal hearing or parties may indicate that they intend to provide written submissions to the court within seven days of judgment of the court."

Due to an oversight by the respondent, at the time judgment was delivered the respondent neither applied for an indemnity certificate to be issued pursuant to the Act nor gave any indication that written submissions would be provided to the Court. In a letter addressed to the Senior-Deputy Registrar of the Court of Appeal, dated 28 April 2006, the respondent sought leave within the seven day period for an extension of time in which to submit written submissions in support of its application for an Indemnity Certificate within seven days from the date of that letter. This application was unopposed, and was granted.

[3] Section 15(1) of the Act relevantly provides that "where an appeal against a decision of a court to the Supreme Court... on a question of law succeeds, the Supreme Court may, upon application made in that behalf, grant any respondent to the appeal an indemnity certificate in respect of that appeal." The Supreme Court has a "wide"[2] discretion to grant or refuse an indemnity certificate.[3] The Act does not specify any criterion upon which the Court must exercise its discretion under s 21(1). In Brisbane City Council v Ferrow Enterprises Hoare J held that the discretion "must be exercised judicially".[4]

[4] This appeal against the decision of the District Court to the Court of Appeal succeeded on a question of law. It involved a pure question of law, namely the correct construction of a contract. The particular legal issue was whether there was a term implied in the contract that required the appellant to provide work to the respondent for the duration of the four year contract, even if that required the appellant to conduct a business which otherwise it would have ceased to conduct. The respondent succeeded in the District Court but lost on appeal. The respondent's case found favour with two of the four judges who heard it. In the particular circumstances of that appeal, it is appropriate for this Court to issue an indemnity certificate to the respondent in respect of the appeal costs.

[5] MCMURDO J: I agree with Jerrard JA that an indemnity certificate should issue in favour of the respondent, for the reasons he gives.

[1] Jackson Nominees P/L v Hanson Building Products P/L [2006] QCA 126; Appeal No 6093 of 2005, 21 April 2006.

[2] Brisbane City Council v Ferro Enterprises Pty Ltd [1976] Qd R 332 at 333.

[4] Brisbane City Council v Ferro Enterprises Pty Ltd [1976] Qd R 332 at 333.

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