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[2010] QCA 172
Court of Appeal (Qld)
2010-07-02
McMurdo P, Muir JA and Daubney JJudgment of, the Court
Original judgment source is linked above.
Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: Multi-Service Group Pty Ltd (in liq) & Anor v Osborne & Anor [2010] QCA 172
PARTIES: MULTI-SERVICE GROUP PTY LTD (IN LIQUIDATION) ACN 071 610 127 (plaintiff/applicant/respondent) ROBERT EUGENE MURPHY (AS LIQUIDATOR) (second applicant/respondent) v (defendant/first respondent/applicant) ACN 083 003 445 (defendant/second respondent/applicant)
FILE NO/S: Appeal No 11380 of 2009 / Appeal No 11381 of 2009 / SC No 4620 of 2006 / SC No 5388 of 2004
DIVISION: Court of Appeal
PROCEEDING: General Civil Appeal – Further Order
ORIGINATING COURT: Supreme Court at Brisbane
DELIVERED ON: 2 July 2010
DELIVERED AT: Brisbane
HEARING DATE: Heard on the papers
JUDGES: McMurdo P, Muir JA and Daubney J / Judgment of the Court
ORDER: The applicants be granted an indemnity certificate in respect of each appeal
CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – APPEAL COSTS FUND – POWER TO GRANT INDEMNITY CERTIFICATE – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL –applicant respondents sought to apply for an indemnity certificate under s 15(1) Appeal Costs Fund Act 1973 (Qld) – whether indemnity certificate should be granted / Appeal Costs Fund Act 1973 (Qld), s 15, s 21 / Cameron v Noosa Shire Council [2006] QCA 144, cited / Holdway v Arcuri Lawyers (A Firm) [2008] QCA 302, cited / Mitchell v Pacific Dawn Pty Ltd [2003] QCA 526, cited
COUNSEL: D Savage SC, with I A Erskine, for the applicant / P Morrison QC, with P Tucker, for the respondent
SOLICITORS: Tucker & Cowen for the applicant / Ernst & Young for the respondent
THE COURT: This Court allowed appeals against orders in proceedings BS4620/06 and BS5388/04 that the appellants' "application for reactivation" of the proceeding be refused. The applicant respondents have applied for an order that they be granted an indemnity certificate under s 15 of the Appeal Costs Fund Act 1973 (Qld) in respect of each of the appeals.
Section 15(1) of the Appeal Costs Fund Act 1973 (Qld) provides:
"15****Grant of indemnity certificate
(1)Where an appeal against the decision of a court—
(a)to the Supreme Court;
(b)to the High Court of Australia from a decision of 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."
The Court's discretion to grant an indemnity certificate is unfettered1 but, of course, must be exercised judicially on relevant considerations.
The fate of the appeal was dependent, essentially, on two matters: the correctness of the prior approach of the primary judge to the construction of *Practice Direction No.*4 of 2002 and whether there was a factual error in the primary judge's reasons.
It was held that the primary judge's conclusion was based, at least in part, on a factual error. That error was not one based in any way on the applicants' conduct or submissions. That is a matter which supports the application.2
The submissions at first instance by both parties accepted the principles expounded by the primary judge in ARC Holdings Pty Ltd v Riana Pty Ltd & Anor.3 Those principles were challenged on appeal and held to be erroneous. In those circumstances it seems to be appropriate that the application be granted.
It is ordered that the applicants be granted an indemnity certificate in respect of each appeal.
Multi-Service Group Pty Ltd (in liq) & Anor
Osborne & Anor [2010] QCA 172