Wiesac Pty Ltd v Insurance Australia Ltd (No 4)

In the matter of Wiesac Pty Ltd v Insurance Australia Ltd (No 4), the applicants sought an indemnity certificate in respect of their appeal costs from the respondents. The applicants, Wiesac Pty Ltd, had previously succeeded in a review of a costs assessor’s certificate pursuant to rule 742(1) of the Uniform Civil Procedure Rules 1999 (Qld). The applicants argued that the costs assessor’s decision to disallow the respondents’ junior counsel’s fees for trial was manifestly wrong. The respondents sought an indemnity certificate for the costs incurred during the appeal under section 15 of the Appeal Costs Fund Act 1973 (Qld).

The primary legal issue before the court was whether the court should exercise its discretion to grant an indemnity certificate to the respondents. The court noted that the grant or refusal of an indemnity certificate was a matter of discretion for the court and the relevant principles were set out by the Court of Appeal in Eversden Pty Ltd v Miladi. The court held that section 15 of the Appeal Costs Fund Act was not intended to relieve against the ordinary risk of expense due to litigation loss, but rather was limited to relieving against a particular and limited type of misfortune in litigation. The court further held that it was relevant to consider the conduct of the respondents at first instance and their responsibility, if any, for the erroneous decision of law for which the application for a certificate was made. The obligation was upon the applicant to show some ground calling for the exercise of the discretion in their favour.

The court found that the applicants had not shown any such ground. The court held that the applicants had submitted that there was no evidence or suggestion that they caused or contributed to any error by the costs assessor. However, the court found that the applicants had stated in their Form 61 submitted to the costs assessor that only a senior counsel ought to be allowed on the trial in any event. The matter did not involve such complexity or volume of material necessitating the division of labour between two counsel. The court held that the applicants had some responsibility for the costs assessor’s erroneous decision of law and dismissed the application.

The court dismissed the application for an indemnity certificate. The applicants were ordered to pay the respondents’ costs of the application.