Brannock v Jetstar Airways Pty Ltd [2010] QCA 252 (2010) 273 ALR 391

SUPREME COURT OF QUEENSLAND CITATION: Brannock v Jetstar Airways P/L [2010] QCA 252 PARTIES: WILLIAM JOHN BRANNOCK (plaintiff/respondent) v JETSTAR AIRWAYS PTY LIMITED ABN 33 069 720 243 (defendant/appellant) FILE NO/S: Appeal No 13353 of 2009 DC No 2492 of 2008 DIVISION: Court of Appeal PROCEEDING: General Civil Appeal – Further Order ORIGINATING COURT: District Court at Brisbane DELIVERED ON: 17 September 2010 DELIVERED AT: Brisbane HEARING DATE: Heard on the papers JUDGES: McMurdo P, Fraser and White JJA Judgment of the Court ORDER: 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 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 COUNSEL: M Grant-Taylor SC for the respondent SOLICITORS: Schultz Toomey O’Brien Lawyers for the respondent [1] THE COURT: Judgment was delivered on 20 August 2010 allowing the appeal from the District Court and entering judgment for the appellant against the -- 1 of 2 -- 2 respondent.1 The respondent now applies for the grant of an indemnity certificate pursuant to 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.” [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 Hartley2 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. 1 Brannock v Jetstar Airways P/L [2010] QCA 218. 2 [1980] Qd R 149. 3 Ibid at 151 per Connolly J. 4 Ibid at 151-2. -- 2 of 2 --