Collins v Marinovich[2023] QSC 187

SUPREME COURT OF QUEENSLAND

1. [1]
   On 14 June 2021, Ryan J gave judgment for the applicant plaintiff in this proceeding.^[1]  On 27 July 2021, her Honour ordered as follows:^[2]

“The Second Respondent is to pay the Applicant’s costs of the proceeding.  The First Respondent is to pay the Applicant’s costs of paragraph one of the Applicant’s originating application filed 12 June 2019.”

2. [2]
   On 28 July 2023, this Court heard an application pursuant to r 724(1) of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) by the applicant to review a decision made by a cost assessor in a cost assessor’s certificate of assessment issued by him on 4 October 2022.
3. [3]
   On 9 August 2021, judgment was granted in favour of the applicant and orders setting aside the cost assessor’s decision with a direction that the cost assessment be remitted back to the same costs assessor to undertake the assessment pursuant to the judgment of this Court were made. The first respondents were also ordered to pay the applicant’s costs of the application for review and the applicant’s costs of obtaining the cost’s assessor’s reasons for the decision made by him in the certificate.^[3]
4. [4]
   At the time of the publication of my written reasons, counsel for the first respondents made an instanta application for the grant of an indemnity certificate pursuant to s 15(1) of the Appeal Costs Fund Act 1973 (Qld) (“the Act”).  Short oral submissions in support of the application were then made.^[4] 
5. [5]
   Section 15(1) of  the Act relevantly provides:

“15Grant of indemnity certificate

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

1. (a)
   to the Supreme Court;
2. (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.”

6. [6]
   An application to review a decision included in a cost assessor’s certificate of assessment pursuant to r 742(1) of the UCPR is capable of falling within the terms of s 15(1) of the Act.^[5]
7. [7]
   The appeal succeeded on a question of law and, accordingly, jurisdiction exists to grant an indemnity certificate in respect of the appeal under s 15(1) of the Act.  Ultimately, the grant or refusal of an indemnity certificate is a matter of discretion for the court.^[6]
8. [8]
   In Eversden Pty Ltd v Miladi [2015] QCA 203, the Court of Appeal relevantly observed that s 15(1) “is not intended to relieve against the ordinary risk of expense due to the litigation loss, but rather is limited to relieving against a particular and limited type of misfortune in litigation.”^[7]  In Eversden, the Court also observed that the conduct of the respondent and his or her responsibility for any erroneous decision of law for which the application for a certificate is made is a relevant factor.  It follows that the applicant’s contribution to the need for the application for review in the first place is relevant. 
9. [9]
   Before the cost assessor and indeed before me, the first respondents strenuously argued that the construction of the costs order involved the assessment of the applicant’s costs of paragraph one of the originating application attributable to the first respondent only, and that the costs order created a separate liability in respect of each respondent. In other words, the first order was a general order and the second order a carve out order. An experienced cost assessor ultimately accepted the first respondent’s submissions. It was this decision that I held to be manifestly wrong.
10. [10]
    In the present application the first respondents accepted that their submissions below contributed to the error by the cost assessor but argued that their submissions before the cost assessor and indeed before this Court may properly be regarded as “fairly arguable.”^[8]
11. [11]
    As Justice Connolly relevantly observed in Lauchlan v Hartley [1980] Qd R 149: 

“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…the proper construction of a particular instrument which will often call for a balancing of competing considerations so that opposing views may be properly regarded as fairly arguable.”^[9]

12. [12]
    The exercise of my discretion in the present case is a finely balanced one but ultimately I accept that although the first respondents preferred construction was unsuccessful before me it is one that was “fairly arguable”. In these circumstances I am satisfied that this is an appropriate case in which to grant the first respondents the indemnity certificate seek they seek.
13. [13]
    I therefore made an order in terms of the draft emailed though to my associate. The certificate will be placed with the file and these reasons revised and published.