SUPREME COURT OF QUEENSLAND

CITATION:	Gambaro Pty Ltd as Trustee for the Gambaro Holdings Trust v Rohrig (Qld) Pty Ltd; Rohrig (Qld) Pty Ltd v Gambaro Pty Ltd [2016] QCA 21	
PARTIES:	In Appeal No 6414 of 2015:
GAMBARO PTY LTD AS TRUSTEE FOR THE GAMBARO HOLDINGS TRUST
ABN 42 938 456 099
(appellant)
v
ROHRIG (QLD) PTY LTD
ABN 67 093 753 970
(respondent)
In Appeal No 6996 of 2015:
ROHRIG (QLD) PTY LTD
ABN 67 093 753 970
(appellant)
v
GAMBARO PTY LTD AS TRUSTEE FOR THE GAMBARO HOLDINGS TRUST
ABN 42 938 456 099
(respondent)	
FILE NO:	Appeal No 6414 of 2015
Appeal No 6996 of 2015
SC No 8579 of 2014	
DIVISION:	Court of Appeal	
PROCEEDING:	General Civil Appeal – Further Orders	
ORIGINATING COURT:	
Supreme Court at Brisbane – [2015] QSC 170	
DELIVERED ON:	12 February 2016	
DELIVERED AT:	Brisbane	
HEARING DATE:	Heard on the papers	
JUDGES:	Fraser and Morrison JJA and Boddice J
Judgment of the Court	
ORDER:	That pursuant to s 15 of the Appeal Costs Fund Act 1973 (Qld) the respondent to Appeal No. 6996/15 be granted an indemnity certificate in respect of that appeal.	
CATCHWORDS:	APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – APPEAL COSTS FUND – POWER TO GRANT INDEMNITY CERTIFICATE – WHEN GRANTED – where the Court dismissed the plaintiff’s application for summary judgment and allowed an appeal by the defendant against an order dismissing its application to strike out the plaintiff’s statement of claim – where the plaintiff applied for the grant of an indemnity certificate – where the defendant’s appeal succeeded on a question of law – where the power to grant an indemnity certificate is discretionary – where the question of law upon which the appeal turned was novel – where the plaintiff’s position was fairly arguable – whether the Court should exercise its discretion to grant an indemnity certificate
Appeal Costs Fund Act 1973 (Qld), s 15
Sultana Investments Pty Ltd v Cellcom Pty Ltd (No 2) [2009] 2 Qd R 287; [2008] QCA 398, considered	
COUNSEL:	No appearance by the appellant/respondent, the appellant’s/respondent’s submissions were heard on the papers
No appearance by the respondent/appellant, the respondent’s/appellant’s submissions were heard on the papers	
SOLICITORS:	No appearance for the appellant/respondent
No appearance for the respondent/appellant	
[1]	THE COURT:  On 18 December 2015 the Court dismissed an appeal by the plaintiff (“Gambaro”) in proceedings in the Trial Division against an order dismissing its application for summary judgment and allowed an appeal by the defendant (“Rohrig”) against an order dismissing its application to strike out Gambaro’s statement of claim.  Gambaro has now applied for the grant of an indemnity certificate pursuant to s 15 of the Appeal Costs Fund Act 1973 (Qld).
[2]	In relation to certain appeals, including an appeal against the decision of a court to the Supreme Court, s 15(1) of the Appeal Costs Fund Act 1973 (Qld) empowers the Supreme Court to grant to any respondent to the appeal an indemnity certificate in respect of the appeal where the appeal succeeds on a question of law.  Thus the indemnity certificate for which Gambaro applies could relate only to Rohrig’s successful appeal against the refusal of its application to strike out Gambaro’s statement of claim; s 15 has no potential application in relation to Gambaro’s costs in its own appeal, which was dismissed.
[3]	The Court would accept that Rohrig’s appeal succeeded on a question of law.  That satisfies the jurisdictional requirement in s 15.  The remaining question is whether the discretion to grant the certificate should be exercised.  On that point Gambaro cited the following passage in White AJA’s reasons in Sultana Investments Pty Ltd v Cellcom Pty Ltd (No 2) [2009] 2 Qd R 287 at [21]:
“[21]	The power to grant an indemnity certificate is discretionary and there is no appeal from the exercise of the discretion.  There are no criteria in the Act for the exercise of the discretion, however, the Full Court in Lauchlan v Hartley considered how the discretion should be exercised and invited submissions from the Minister charged with oversight of the Fund.  Counsel for the Minister conceded that notwithstanding that the submissions of counsel had led to the order or judgment which was later reversed, that should not, of itself, lead to a refusal of a certificate provided that the submissions were reasonably advanced or were fairly arguable.  Accordingly, the court gave some guidance about circumstances in which it may be said that the argument advanced was reasonable or that the proposition was fairly arguable.  Emphasising that he intended to be neither definitive nor exhaustive Connolly J, with whom Wanstall CJ and Lucas SPJ agreed:
“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.  Thus a situation in which the authorities are or appear to be in conflict provides an obvious instance in which a resort to the appellate process is justifiable although of course the limits to which it can properly be taken at the expense of the fund must depend on the particular circumstances.  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.  Again, appeals from the exercise of a judicial discretion will frequently turn upon the weight to be given to one or more of the relevant considerations.  Yet another instance is provided by the appeal from a value judgment such as those aspects of the assessment of damages which are at large.
A difference 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.  In such a case it is material to consider the part played by the unsuccessful respondent in leading the tribunal to the decision.  Where the advocate, barrister or solicitor, invites a decision for which there is no legal warrant, or which is inconsistent in some respect with settled legal principle, the question arises whether his contentions were in truth fairly arguable.  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.”
[4]	The Court accepts Gambaro’s submission that the question of law upon which the appeal turned was novel and that Gambaro’s position was fairly arguable, as was evidenced by the circumstance that it was accepted in the carefully reasoned decision of the primary judge.  Notwithstanding that the primary judge’s decision involved the acceptance of submissions advanced by Gambaro, this is an appropriate case in which to exercise the discretion to grant an indemnity certificate.
[5]	The appropriate order is that pursuant to s 15 of the Appeal Costs Fund Act 1973 (Qld) the respondent to Appeal No. 6996/15 be granted an indemnity certificate in respect of that appeal.