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[2009] QDC 282
respondent. Indemnity certificates granted to the Board of Professional Engineers of Queensland, conditional upon the Board filing undertakings not to oppose Mr Lennox seeking review of costs orders in the...
The Board of Professional Engineers lost two appeals to the District Court brought by Mr Lennox. The Board applied for indemnity certificates under the Appeal Costs Fund Act so it could recover its appeal costs from the Fund. The court found the Board was not 'the Crown' (its enabling Act expressly states it does not represent the State) and that the appeals succeeded on questions of law, so a certificate could be granted. Because the grant is discretionary and to avoid unfairness given earlier costs orders, the court granted the certificates but required the Board to file undertakings not to oppose Mr Lennox seeking review of those costs orders in light of the Board's access to the Fund.
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2,005 words · generated 27/07/2026
The District Court (Robin QC DCJ) considered applications by the Board of Professional Engineers of Queensland for indemnity certificates under s 15(2) of the Appeal Costs Fund Act 1973, following the Court's allowance of two appeals brought by Mr Lennox from disciplinary determinations of the Commercial and Consumer Tribunal. The appeals were allowed because the Tribunal had committed errors of law, as explained in the Court's reasons reported at [2009] QDC 99 and [2009] QDC 100 (see para [1]). The Board, as unsuccessful respondent in those Tribunal proceedings but successful in the District Court appeals, sought indemnity certificates to recoup its costs from the Appeal Costs Fund (para [2]).
2 cited instruments linked from this judgment.
Two critical issues arose: first, whether the Board was 'the Crown' so as to be excluded by s 21(3) of the Appeal Costs Fund Act from receiving a certificate (para [4]); second, whether the circumstances justified the exercise of the court's discretion to grant certificates and, if so, whether any conditions should be imposed (paras [5], [8], [11], [12]).
The court held that the Board was not the Crown for the Act's purposes, relying on the Board's statutory character and the express provision in the Professional Engineers Act 2002 that 'The Board does not represent the State' (s 78) (para [4]). The court thereafter concluded that indemnity certificates ought to be granted, but, recognising potential unfairness given prior costs orders made on the assumption no Fund recourse would arise, imposed a condition under the Supreme Court of Queensland Act s 80 that the Board must file undertakings not to oppose Mr Lennox seeking review of costs orders in light of the Board obtaining the certificates (para [12]). The applications were accordingly granted, conditionally (para [9], [12]).
Statutory foundation and interpretation: The primary statutory gateway is s 15(2) of the Appeal Costs Fund Act, which authorises the District Court to grant an indemnity certificate where an appeal to the District Court on a question of law succeeds (para [2]). The threshold factual/legal prerequisite was satisfied: the appeals had succeeded on questions of law (para [1]). The next statutory obstacle was s 21(3), which states that 'An indemnity certificate shall not be granted in favour of the Crown' (para [4]). The court analysed whether the Board fell within the meaning of 'the Crown'.
The court examined the Professional Engineers Act 2002, notably s 78 ('The Board does not represent the State') and s 104, which establishes the Board as a 'statutory body' (para [4]). Applying the orthodox approach to the meaning of 'the Crown', drawn to assist by quotation from Hogg & Monahan concerning control by Ministers, and that municipal bodies, tribunals and regulatory agencies are not Crown agents unless controlled by a Minister or expressly declared to be agents, the court concluded the Board was not an agent of the Crown (para [4]). The Board was self-funding and independent; it did not represent the State (para [4]).
Discretion and policy: The Act does not compel a certificate; the grant is discretionary (see paras [5]-[7]). The court surveyed authorities in which certificates were refused where the losing respondent had led the tribunal into error, but also noted that putting forward a fairly arguable position at first instance, later overturned, is not automatically fatal to a certificate application (para [5]). The court was conscious of policy considerations surrounding delay in applying for certificates and of the value of practice directions that require timely notification (paras [8], [10], [11]). Although uneasy about delay and potential unfair advantage, the court did not refuse the applications on that basis (para [8], [11]).
Scope to impose conditions: The court invoked s 80 of the Supreme Court of Queensland Act 1991 to impose conditions when 'doing another thing', here, granting an indemnity certificate (para [12]). The Court considered the earlier orders (8 May 2009), which had been made without the court knowing the Board would seek indemnity certificates, and concluded a condition requiring undertakings from the Board not to oppose any liberty to apply by Mr Lennox to have costs aspects reviewed (in light of the Board's recourse to the Fund) was appropriate to mitigate any unfairness (para [12]).
The conclusions followed logically: the Board is not the Crown; the statutory preconditions for certificates were met; the court's discretion favoured grant; and conditions were necessary to secure justice between the parties given the particular procedural history.
Before: The Appeal Costs Fund Act had long been understood to permit indemnity certificates where specified statutory conditions are met, but not automatically. Precedents had established that certificates could be refused where the unsuccessful respondent's conduct had caused the error in the tribunal (see examples cited at para [5]). There was also judicial concern about delay and practice direction regimes (e.g. Practice Direction No. 2 of 1982 as discussed in Entsch v Smith) governing the timing of applications for certificates (paras [8], [10], [11]).
After: This decision clarifies two practical points in the Queensland context: (1) a statutory disciplinary board expressly stated not to represent the State and operating independently and on fee revenue is not the 'Crown' within the meaning of s 21(3), so may be eligible for an indemnity certificate (para [4]); (2) the court may, under s 80 of the Supreme Court Act, impose conditions on the grant of an indemnity certificate to address fairness concerns arising from prior costs orders or procedural timings, specifically by requiring undertakings as to conduct in relation to costs review (para [12]). The decision therefore affirms the discretionary and conditional nature of certificate grants and emphasises procedural prudence in making timely applications (paras [8], [10], [11]).
The statutory trigger (para [2]):
The 'Crown' bar (para [4]):
The Board's status (para [4], quoting s 78):
Discretion and the outcome (para [9]):
Condition imposed (para [12]):
This decision is engaged when:
Practically, litigants and counsel should expect the court to enquire into the statutory status of a public or regulatory body before assuming s 21(3) automatically bars or allows a certificate, and to anticipate possible conditions where prior costs orders were made without awareness of potential Fund recourse.
This judgment itself cites prior authorities and practice direction materials (paras [3], [5]-[11]). The present decision applies and reconciles those authorities to the facts before the court, particularly drawing on precedent that certificates are not automatic and may be refused where the respondent's conduct caused the tribunal error (para [5]), and on Entsch v Smith for the significance of timely application (paras [8], [10], [11]). The judgment does not purport to be a broad rule beyond its statutory and factual context; it confirms the established discretionary approach and supplies an example of conditionally granting a certificate where fairness requires undertakings (paras [9], [12]).
This judgment does not record subsequent appellate treatment of its decision. Practitioners should check for any later appellate consideration addressing the precise question of what entities constitute 'the Crown' for s 21(3), and any appellate authority on the propriety and scope of conditions attached to indemnity certificates.
Several practical and doctrinal questions remain open or are only partially resolved by this decision:
The outer limits of 'the Crown': The court relied on the Professional Engineers Act's express statement that the Board does not represent the State and on commentary about ministerial control (para [4]). Where a statutory body has mixed funding or varying degrees of ministerial control, the boundary between Crown and non-Crown status for s 21(3) purposes may require further clarification by appellate courts.
Appropriate scope of conditions: The court imposed an undertaking not to oppose costs-review applications. Future cases may test what other conditions are permissible, whether conditions can limit the quantum or scope of a certificate, and how they interact with s 16's prescribed scope of what the Fund will pay (paras [7], [12]).
Timing and practice directions: The court emphasised the benefits of prompt application and the existence of earlier practice directions (paras [8], [10], [11]). There remains scope for uniform practice rules or directions in the District Court (or Court of Appeal) to reduce uncertainty and avoid the 'unease' the court described when certificates are sought late.
Conduct that disentitles certificate: The judgment reiterates that conduct by an unsuccessful respondent that led the tribunal into error may justify refusal (para [5]). The precise threshold of culpable conduct versus legitimate but ultimately unsuccessful advocacy remains fact-specific and could benefit from further articulation by higher courts.
Interaction with costs orders already made: The practical operation of conditioning certificates to preserve parties' rights to review or adjust costs orders (as here) raises procedural questions about timing, interlocutory applications and security for costs that may need future development.
In sum, Lennox v Board of Professional Engineers (No 3) clarifies that independent statutory regulatory bodies are not necessarily 'the Crown' for the Appeal Costs Fund Act, confirms the discretionary and conditional character of indemnity certificates, and signals the court's readiness to use conditionality to preserve fairness where previous costs determinations were made without knowledge of potential Fund recourse (paras [4], [9], [12]). Practitioners should be alert to the statutory character of public bodies, the timing of applications, and the possibility of conditions when seeking or opposing indemnity certificates.
Holding Redlich for applicants (respondent in the appeals)
**[1] The Board of Professional Engineers of Queensland was the unsuccessful respondent in two appeals against determinations of the Commercial and Consumer Tribunal in two separate disciplinary proceedings prosecuted against Mr Lennox. Each appeal required the court's leave to be pursued, leave which could be granted only for an appeal based on error of law or excess of jurisdiction by the Tribunal. Reasons for leave to appeal being granted in each proceeding and the appeal allowed may be found at [2009] QDC 99 and [2009] QDC 100; in the former, the Tribunal was found to have denied Mr Lennox natural justice (and thereby fallen into an error of law) by finding against him based on a case which the Board had not made and which he had no occasion to meet. In the latter (in which Mr Lennox failed in his challenge to the procedure followed in the vormulation of a "disciplinary ground" against him) I was of the view (paragraph [25]) that an "error of law" on a similar basis had occurred where the Tribunal failed to offer the parties, Mr Lennox in particular, an opportunity to submit for an outcome whereby some of the Board's allegations having failed, less than full costs should have been awarded in its favour. Before it was known that both parties had failed in part in the result in the Tribunal, they had both indicated in submissions that they wanted costs.
[2] The applications are based on s 15(2) of the Appeal Costs Fund Act 1973:**
"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."
**[3] One would not ordinarily classify the Tribunal as a court, but the definition of "court" in s 4 brings it in, the District Court in this context being a "superior court" to which an appeal is made. See Bieto v Triline Australia Pty Ltd (No. 2) [2003] QDC 307 at [45] ff. If it matters, 'appeal' is widely defined in s 4. A consequence is that certificates under the Act are available in a wide range of circumstances. See R v Judge McGuire [1986] 1 Qd R 61; R v Webster [1987] 1 Qd R 45; Re Cooke [1997] 1 Qd R 15 and Queensland Building Services Authority v The Proprietors of "The View" [1999] QCA 428 (following the allowing of an appeal as recorded at [1998] QCA 401). There are cases in which the Appeal Court lacked power to grant a certificate under the Act, as in R v Foggo [1989] 2 Qd R 49 and Land and Resources Tribunal v Schmidt [2005] QCA 195 (see [29]).
[4] A particular limitation noted in the present applicant's written submissions is created by s 21(3):**
"An indemnity certificate shall not be granted in favour of the Crown."
There is no guidance in the Appeal Costs Fund Act, the Acts Interpretation Act 1954 or other legislation such as the Crown Proceedings Act 1980 as to what 'the Crown' might comprehend. The Professional Engineers Act 2002, which establishes the Board as a 'statutory body' (s 104) which is to act independently, impartially and in the public interest (s 79) and is self-funding (being reliant on registration fees paid by professional engineers in the State) may provide the answer here in s 78:
The 2002 Act has many provisions about the Board's relations with the Minister in relation to matters that may be referred, advice sought or given out.
I have found the following discussion on Hogg & Monahan, Liability of the Crown (3rd) at 11 helpful:
What is meant by "the Crown"? "The crown as an object is a piece of jewelled headgear under guard in the Tower of London. But it symbolises the powers of government which were formerly wielded by the wearer of the crown." Although we now have a "constitutional monarchy", in which the role of the Queen (and of her representatives in the Commonwealth countries) has become entirely formal, the term 'the Crown' has persisted as the name for the executive branch (but not the legislative branch) of the government. Executive power is actually exercised by the Prime Minister and other Ministers who direct the work of the civil servants in the various government departments. This structure is accurately and commonly described as 'the government' or 'the administration' or 'the executive', but lawyers usually use the term 'the Crown'. Thus, lawyers speak of the Crown expropriating a house, of the Crown being sued for breach of contract, or of the Crown being bound by statute.
The Crown includes the departments of government that are headed by a Minister. It is the control of the Minister that provides the link to the Crown. Municipal bodies, school boards, universities, hospitals, regulatory agencies, administrative tribunals and public corporations, even if they are performing 'governmental' functions, are not agents of the Crown, unless they are controlled by a Minister or expressly declared by statute to be an agent of the Crown. A question often arises as to whether a public body is or is not an agent of the Crown. The answer will determine whether the public body can render the Crown liable in tort, or bind the Crown by contract, or take advantage of the various privilege and immunities of the Crown."
(An interesting reflection of the relevant considerations may be found in the former District Court Rules:
**The Board cannot be regarded as the Crown. It operates and is funded independently (the court understands effectively at the expense of professional engineers in the State).
[5] Section 21 emphasises that the grant or refusal of an indemnity certificate is a matter of discretion for the court invited to grant one ("no appeal lies"). It is salutary to note several reported cases in which indemnity certificates were refused, such as Zappulla v Perkins (No. 2) [1978] Qd R 401, Queensland Fish Board v Bunney [1979] Qd R 301; Lauchlan v Hartley [1980] Qd R 149; Vella v Larson [1982] Qd R 298. Where the tribunal at first instance was led into the relevant error by the unsuccessful respondent in the ensuing appeal, the discretion may well not be exercised favourably, although Lauchlan v Hartley makes it clear that presenting a view which is fairly arguable (although rejected on appeal) does not have any automatic consequence against the party seeking a certificate; it was also recognised that different positions may legitimately be taken as to the way in which the law ought to be applied to particular fact situations. It is relevant to consider to what extent, if any, a tribunal's error was due to the conduct of or a decision taken by the applicant for an indemnity certificate.
[6] It is interesting to note from Vella v Larson that legislation like the Appeal Costs Fund Act does not appear to embody "any object of relieving against the ordinary risk of expense due to loss in litigation". The Act is not there "to provide aid or legal assistance in the broad sense at the expense of the fund" (300), "the grant of a certificate is not meant to be automatic ... an application under the Act is not routine" (301). (Such considerations led to my requiring the filing of formal applications to be supported by written submissions (attendance at the "hearing" not being required).)
[7] In Vella v Larson it was considered over-technical to automatically characterise a question of the sufficiency of evidence as one of law. The Full Court may have been influenced by the consideration noted at 299 that:**
"If this court decides to grant that certificate it has no further discretion to exercise over its scope, since s 16 of the Act prescribes that subject to the Act, the certificate, if granted, entitles the respondents to be paid from the fund in an amount equal to the appellant's costs of the appeal to this court together with the appellant's costs of the new trial as well as the plaintiffs' own costs of the appeal and of the trial. Section 16 does impose and leaves to be further prescribed certain upper limits upon the amount payable from the fund to any one respondent, but it is not necessary for us to be concerned with that aspect on this application."
[8] I confess to some unease as to the way in which the indemnity certificates now sought may work out, given the refinement attempted to be achieved by the court's orders made in the two proceedings on 8 May 2009, when the court had no inkling that the Board might be seeking indemnity certificates. It had ample opportunity before that date to inform the court of any intention to seek an indemnity certificate, an exercise in which delay is not to be encouraged: Entsch v Smith [1992] QCA 143. The unease referred to relates to the potential I fear may exist for the Board to be unfairly advantaged as against Mr Lennox, maybe getting full costs (when he gets part only of his) maybe having some special costs protection in respect of future instalments of the 175 of 2008 saga in the Tribunal. It may be that these aspects can be dealt with under the liberty to apply reserved in the orders of 8 May 2009 which were:
"Friday 08 May 2009 - Lennox v Board of Professional Engineers Cairns 175/08 - Appeal - Judgment
Friday 08 May 2008 - Lennox v Board of Professional Engineers - Cairns 228/08 - Appeal - Judgment
**[9] I do not think this is the occasion for attempting refinements to the straightforward procedure the Act sets up, or even of extracting undertakings (perhaps regarding the scope of the disciplinary proceeding if it is pursued further in the Tribunal) as a condition of granting either of the indemnity certificates. The reasons already published identify the errors of law of the Tribunal in each case and exonerate the Board from any responsibility for their arising. The determination of the court in each application is that there ought to be an indemnity certificate.
[10] So far as I am aware, there is no Practice Direction or anything similar of relevance corresponding with Practice Direction No. 2 of 1982 (see [1982] Qd R 583) as considered in Entsch v Smith. The Practice Direction required that an application for an indemnity certificate under s 15 be made at or before the conclusion of oral argument before the Full Court, apparently in the interests of convenience and efficiency. The Full Court expressed reluctance to deny a certificate on the basis of delay not satisfactorily explained, but did refuse to grant a certificate on the basis that the substantial questions in the appeal were ones of fact (rather than law) and that the applicant had led the trial judge into error by evidence which the applicant for a certificate had adduced about a procedure in the Family Court.
[11] What has happened in the present proceedings serves to show that the approach enshrined in the Practice Direction of 1982 has the advantage of the court being better placed to do what is right or just in respect of costs as between the parties; this would not be the first case in which it would have been pertinent for the court to know that the unsuccessful respondent in an "appeal" from a "court" would have costs ordered to be paid to the successful party and its own costs covered at the expense of the Fund.
[12] The court has a wide power under s 80 of the Supreme Court of Queensland Act 1991 to impose conditions in making orders or doing "another thing". The orders of 8 May 2009 were made on the assumption that the costs generated by the errors of law made in the Tribunal would have to be borne by the parties without contribution from any other source. An appropriate condition is that the granting of indemnity certificates be dependent upon the filing of undertakings by the Board not to oppose Mr Lennox availing himself of the liberty to apply under the orders determining the appeals to have costs aspects reviewed on the basis of the Board obtaining an indemnity certificate. My associate has communicated to the solicitors, the Board's in particular, that undertakings ought to be filed in expectation of indemnity certificates being granted, essentially in the forms proposed by the Board, although amendments have been made by me to correct the date and summary description of the orders resolving the appeals in each case. The corrected drafts will be signed by me upon confirmation that suitable undertakings have been filed.**
Lennox
The Board of Professional Engineers of Queensland
Indemnity certificates granted to the Board of Professional Engineers of Queensland, conditional upon the Board filing undertakings not to oppose Mr Lennox seeking review of costs orders in the relevant appeals in light of the Board's recourse to the Appeal Costs Fund (paras [9], [12]).