Hurley v Clements (No 2)[2009] QCA 207

SUPREME COURT OF QUEENSLAND

1. THE COURT:  The Court disposed of the appeal in this matter on the basis that the appeal was allowed but only in part.  The substance of the orders made by this Court largely mirrored the orders of the District Court.  The parties were given leave to make written submissions in relation to costs in accordance with paragraph 37A of Practice Direction No 1 of 2005.

2. The appellants seek orders that Mr Hurley, the first respondent to the appeal, should pay their costs of the appeal and that there be no order as to costs in respect of the proceedings in the District Court. They also seek an indemnity certificate pursuant to s 15 of the Appeal Costs Fund Act 1973 (Qld) ("the Act") in respect of the proceedings in the District Court. 

3. Mr Hurley seeks orders that the appellants and the Attorney-General pay his costs of the appeal and that the costs order made in his favour by the District Court should stand. Alternatively, Mr Hurley also seeks an indemnity certificate under the Act.

4. The Attorney-General, who was the second respondent to the appeal, does not seek an order for costs against any other party.

The costs of the appeal

5. The appellants and Mr Hurley each assert that they were substantially successful on the appeal. On that basis, each seeks to invoke r 686 of the Uniform Civil Procedure Rules 1999 (Qld) ("the UCPR") which provides that costs follow the event save in special circumstances.  We will return to this point.  Each side also blames the other for the errors of the District Court which led to the appeal to this Court. 

6. On behalf of the Attorney-General, it is said that "[a]n unravelling of the [District] Court's judgment necessarily … entailed a detailed examination of the evidence before the Coroner", and that Mr Hurley should bear responsibility for leading the District Court into error. On behalf of the Attorney-General it is said that "[g]iven that Mr Hurley has received the benefit of a costs order on the District Court … it would not be unjust for Mr Hurley to bear the costs of the appeal without the benefit of an ACF certificate."

7. Because of the novelty and difficulty of the issues agitated in the course of the appeal, we are reluctant to dispose of the costs on the basis that the conduct of the appeal by either party was so unreasonable as to warrant a costs penalty. We are confirmed in this reluctance by the consideration that, although the proceedings were adversarial, the circumstance that the proceedings concerned the consequences of the inquest and its review marked them as having a substantial public interest aspect.

8. The high level of assistance which the Court derived from the submissions made on behalf of the Attorney-General makes us reluctant to accede to Mr Hurley's submission that his costs should be paid by the Attorney-General.

9. The appellants had a measure of success on the appeal in that the appeal was allowed. There is, however, force in the argument made on behalf of Mr Hurley that his substantive position in relation to the findings made by the Acting State Coroner was vindicated. It seems to us that the considerations to which we have referred can best be balanced by an order which recognises the success enjoyed by the appellants, while at the same time protecting Mr Hurley against the burden of coronial errors which he was entitled to have corrected. We consider then that Mr Hurley should pay the appellants' costs of the appeal, and he should have the benefit of an indemnity certificate in respect of the appeal.

The costs in the District Court

10. As to the order for costs made by the District Court in Mr Hurley's favour, the appellants argue that this order was beyond power and, alternatively, that such an order should not have been made. The appellants, who were the respondents in the District Court, seek an indemnity certificate pursuant to s 15(2) of the Act in respect of Mr Hurley's costs of the proceedings in the District Court if that order stands.

11. The appellants argue that the order for costs made by the District Court was not authorised by any provision of the Coroners Act 2003 (Qld).  The absence of a specific provision in the Coroners Act is not relevant.  The power of the District Court to make such an order was conferred by the general provisions of r 680 and r 681 of the UCPR.

12. The order made by the District Court reflected the substantial success enjoyed by Mr Hurley in that court. In the proceedings in that court, the appellants had pursued an active adversarial role. We consider that the order made in Mr Hurley's favour in respect of the costs of the District Court should stand.

13. It must be acknowledged, however, that the occasion for Mr Hurley's application to the District Court was an error of law on the part of the Acting State Coroner for which the appellants cannot reasonably be held responsible. They should have the benefit of an indemnity certificate under the Act in respect of their liability to Mr Hurley under the costs order in respect of the District Court.

14. Accordingly, we order that:

1. the costs order made by the District Court should stand;

2. an indemnity certificate should issue to the appellants in respect of their liability for Mr Hurley's costs under the order referred to in (a);

3. Mr Hurley should pay the appellants' costs of the appeal to be assessed on the standard basis; and

4. an indemnity certificate under s 15 of the Act should issue to
   Mr Hurley in respect of the appeal.