The Court of Appeal refused an indemnity certificate under s 15 of the Appeal Costs Fund Act 1973 (Qld), holding that where the respondent's own submissions at first instance were central to the primary judge's erroneous exercise of discretion, the respondent bore the ordinary risk of litigation loss. An error of law by the primary judge does not automatically entitle the unsuccessful respondent to an indemnity certificate; the applicant must show some ground beyond the ordinary risk of expense due to litigation loss calling for the exercise of the discretion in their favour.
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