Appeal Cost Fund – indemnity certificate

Brannock v Jetstar Airways P/L [2010] QCA 252

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 – where respondent applied 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, s 21

Brannock v Jetstar Airways P/L [2010] QCA 218, related

Lauchlan v Hartley [1980] Qd R 149, applied

Issue:

I refer to my earlier posting where the appeal was allowed. The issue was whether to grant of an indemnity certificate pursuant to s 15 of the Appeal Costs Fund Act 1973 (Qld):

s 15 of the Appeal Costs Fund Act 1973 (Qld) which provides relevantly:

15 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.”

Discussion

[2] By s 21 the grant or refusal of an indemnity certificate lies in the discretion of the Court and no appeal lies from the grant or refusal. The approach has been to require that the argument advanced below and which has proved to be unsuccessful on appeal was fairly arguable. Lauchlan v Hartley[2] gave guidance in respect of “the type of situation in which it may be said that the argument advanced was reasonable or that the proposition was fairly arguable”[3] and thus be amenable to the favourable exercise of the discretion. The guidance offered has consistently been applied since that decision. Connolly J, with whom Wanstall CJ and Lucas SPJ agreed, said:[4]

“Where a decision is reversed on a point of law it will frequently be the case that both sides of the debate are fairly arguable… Again the proper construction of a particular instrument will often call for a nice balancing of competing considerations so that the opposing views may properly be regarded as fairly arguable… A different category of case altogether however is that where the Full Court is of the view that there was no basis on which the judgment or order under appeal could properly have been made… If, in the opinion of the Full Court, the legal warrant was arguably available or the settled principle was arguably distinguishable, the respondent may still succeed in obtaining a certificate. If not he will ordinarily fail to obtain the certificate.”

[3] The present proceedings involved a consideration of the expression “accident” in the Civil Aviation (Carriers’ Liability) Act 1959 (Cth). It was a matter which had not arisen for appellate consideration in Queensland. The case advanced for the respondent was fairly arguable. The respondent should be granted an indemnity certificate.

Order

[4] The respondent be granted an indemnity certificate pursuant to s 15 of the Appeal Costs Fund Act 1973 (Qld) in respect of the appeal which he unsuccessfully defended.

Brisbane Barrister – David Cormack

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