Tarong Energy Corporation Limited v South Burnett Regional Council (formerly Nanango Shire Council)

[2009] QCA 406

SUPREME COURT OF QUEENSLAND

CITATION:

Tarong Energy Corporation Limited v South Burnett Regional Council (formerly Nanango Shire Council) [2009] QCA 406

PARTIES:

TARONG ENERGY CORPORATION LIMITED
(applicant/respondent/applicant)
v
SOUTH BURNETT REGIONAL COUNCIL (FORMERLY NANANGO SHIRE COUNCIL)
(respondent/appellant/respondent)

FILE NO/S:

Appeal No 3703 of 2009
SC No 7937 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal – Further Order

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

24 December 2009

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Muir and Fraser JJA and White J
Judgment of the Court

ORDER:

The application for an indemnity certificate is refused

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – APPEAL COSTS FUND – POWER TO GRANT INDEMNITY CERTIFICATE – WHEN GRANTED – where applicant argued that the appeal succeeded on a question of law and it is therefore entitled to an indemnity certificate – where appeal succeeded on a different question of law than that determined below – whether the applicant should be a granted an indemnity certificate

Appeal Costs Fund Act 1973 (Qld), s 15

Caltabiano v Electoral Commission of Qld & Anor (No 2)[2009] QCA 222, cited
Haug v Jupiters Limited t/as Conrad Treasury Brisbane[2007] QCA 328, cited
Lauchlan v Hartley [1980] Qd R 149, cited
Queensland Fish Board v Bunney, ex parte Queensland Fish Board [1979] Qd R 301, cited
Spotless Group Ltd v Premier Building and Consulting Group Pty Ltd (2006) 16 VR 1; [2006] VSCA 201, cited
Sultana Investments P/L v Cellcom P/L (No 2) [2008] QCA 398, cited
Zappulla v Perkins (No 2) [1978] Qd R 401, cited

COUNSEL:

M D Hinson SC, with P Telford, for the applicant

S P Fynes-Clinton for the respondent

SOLICITORS:

Clayton Utz for the applicant

King & Company for the respondent

1. THE COURT: On 8 September 2009, the Court allowed an appeal from the order made on the respondent’s application in the Trial Division that the appellant deliver to the respondent a copy of the appellant’s consultant’s report which adverted to legal advice given to the appellant.[1]  The Court set aside that order and ordered the respondent to pay the appellant’s costs of and incidental to the appeal, except for the costs associated with the appellant’s application to adduce new evidence.  The effect of the Court’s other orders, as amended on 9 October 2009,[2] was to require the appellant to deliver to the respondent a partial copy of the report in which the legal advice had been redacted and that there be no order as to the costs of the application in the Trial Division. 

   [1]Tarong Energy Corporation Limited v South Burnett Regional Council (formerly Nanango Shire Council) [2009] QCA 265.

   [2]       Tarong Energy Corporation Limited v South Burnett Regional Council (formerly Nanango Shire Council) (No 2) [2009] QCA 304.

1. The respondent has applied for an indemnity certificate under s 15(1) of the Appeal Costs Fund Act 1973 (Qld) in respect of the costs of and incidental to the appeal and its application under the “slip rule” which resulted in this Court’s further orders of 9 October 2009.

1. Section 15(1) provides that where an appeal against a decision of a court to the Supreme Court on a question of law succeeds, the Supreme Court may grant an indemnity certificate to a respondent to the appeal. The relevant circumstances and the issues in the litigation are set out in the reasons given by Fraser JA for allowing the appeal.[3]  As the respondent argued in its detailed written submission, the appeal succeeded on a question of law.  The respondent was not correct, however, in submitting that it is “entitled” to an indemnity certificate.  The power to grant an indemnity certificate is discretionary.

   [3]Tarong Energy Corporation Limited v South Burnett Regional Council (formerly Nanango Shire Council) [2009] QCA 265.

1. The respondent cited authority for the proposition that where a question of law is fairly arguable the operation of s 15 is not constrained to circumstances where the unsuccessful respondent did not seek the decision subsequently reversed on appeal.[4]  There is here though another material consideration.  This Court did not conclude that the primary judge had wrongly decided the legal question which had been addressed by her Honour.  Rather, the Court found that the question her Honour had decided, which was whether the appellant’s communication of its legal advice to its consultant was made for a dominant purpose of a kind which would attract privilege, was the wrong question.  The correct question was whether by communicating the legal advice to the consultant the appellant had waived its privilege.[5]  In framing the question in that way the Court adopted the approach which had been approved in the Victorian Court of Appeal’s majority decision in Spotless Group Ltd v Premier Building and Consulting Group Pty Ltd.[6]  The different question which the primary judge addressed reflected the parties’ arguments before her Honour.  Neither party referred to Spotless.

   [4]Lauchlan v Hartley [1980] Qd R 149 per Connolly J at 150 – 151; Haug v Jupiters Limited t/as Conrad Treasury Brisbane [2007] QCA 328; Sultana Investments P/L v Cellcom P/L (No 2) [2008] QCA 398; Caltabiano v Electoral Commission of Qld & Anor (No 2) [2009] QCA 222; cf Zappulla v Perkins (No 2) [1978] Qd R 401; Queensland Fish Board v Bunney [1979] Qd R 301.

   [5]Tarong Energy Corporation Limited v South Burnett Regional Council (formerly Nanango Shire Council) [2009] QCA 265 particularly at [13], [14], [20], [26].

   [6](2006) 16 VR 1; [2006] VSCA 201.

1. When this Court referred the parties to Spotless the respondent’s senior counsel appropriately ceased to press the argument that the privilege was lost simply because the communication of the legal advice to the consultant might not itself have attracted privilege.  That left for determination the question whether privilege had been waived by that or other communications, but that turned mainly upon factual questions.

1. The Court has concluded that in all of the circumstances it would not be an appropriate exercise of discretion to direct public funds to underwriting the respondent’s costs of its unsuccessful litigation.

1. The Court orders that the respondent’s application for an indemnity certificate is refused.