Gurnett v The Macquarie Stevedoring Co Pty Ltd [No 2]

The case of *Gurnett v The Macquarie Stevedoring Co Pty Ltd [No 2]* involved an application to the High Court of Australia by the respondent company for an indemnity certificate under section 6 of the *Suitors' Fund Act 1951* (N.S.W.). This application followed a decision by the High Court allowing an appeal and reversing an order of the Supreme Court of New South Wales, which had previously dismissed the appellant's appeal. As a result of the High Court's determination, the respondent company became liable for the costs of the appeal in the Supreme Court.

The central legal issue before the High Court was whether its appellate jurisdiction, which allowed it to substitute such judgment as ought to have been given in the first instance, extended to granting an indemnity certificate under the New South Wales legislation. Specifically, the Court had to determine if it could grant a certificate in respect of costs incurred in the Supreme Court, even though the Supreme Court itself had not been in a position to grant such a certificate due to its erroneous decision. The Court also considered whether the function of granting an indemnity certificate was outside the scope of its appellate power, particularly if it was seen as relating to recoupment from a governmental fund rather than a matter between the parties.

A majority of the High Court (McTiernan, Williams, Webb, and Taylor JJ.) held that the appellate power of the High Court under section 37 of the *Judiciary Act 1903-1955* did not extend to granting an indemnity certificate under section 6 of the *Suitors' Fund Act 1951* (N.S.W.). The majority reasoned that while the High Court could substitute the order that the Supreme Court ought to have made, this power did not encompass the creation of a new right to indemnity from a State fund, which was a function conferred by State legislation upon State courts. They distinguished this from the power to make orders as to costs between the parties, which is a standard part of appellate jurisdiction. The Court noted that the *Suitors' Fund Act* operated in relation to costs incurred in State courts and that the High Court's jurisdiction was not affected by State legislation in this manner, referencing prior authority that the High Court was not a "court" within the operation of the Act for the purpose of granting such certificates in respect of costs incurred in the High Court itself.

Dixon C.J. dissented, taking the view that the appellate power was broad enough to include the grant of an indemnity certificate. His Honour reasoned that the function of granting a certificate was ancillary to the determination of an appeal and was intimately bound up with the disposition of the appeal and the consequential orders as to costs. He argued that to deny the High Court the power to grant the certificate would be to take too narrow a view of its appellate jurisdiction, which ought to extend to making the complete order that the Supreme Court ought to have made, including any ancillary orders provided for by State law. The application for the indemnity certificate was dismissed.