Foster v Shaddock[2016] QCA 163

SUPREME COURT OF QUEENSLAND 

1. MARGARET McMURDO P:  I agree with Atkinson J’s reasons for ordering that each party to the appeal bear their own costs of the appeal.
2. FRASER JA:  I have had the advantage of reading the draft reasons for judgment of Atkinson J.  I agree with those reasons and would add only a reference to the conclusion reached by Fitzgerald P and Shepherdson J in Anghel v Minister for Transport (No 2)^[1] that s 49(1)(e) of the Judicial Review Act 1991 authorises an order about costs incurred before the making of a “costs application” under s 49(1).  That is so notwithstanding the contrary indications, in s 49(3) for example, which arguably suggest that the section is instead concerned only with a “costs application” made before the relevant review application is determined.^[2]
3. I agree with the order proposed by Atkinson J.
4. ATKINSON J:  On 26 February 2016, the Court dismissed an appeal against an unsuccessful application by the appellant for judicial review of the decision of the third respondent.  When the order was made dismissing the appeal the appellant was ordered to pay the respondents’ costs of the appeal unless he filed submissions on costs in accordance with paragraph 52(4) of Practice Direction 3 of 2013 within 14 days.
5. On 9 March 2016, the appellant submitted that notwithstanding that he was unsuccessful in his appeal there should be an order that the respondents pay his costs pursuant to s  49(1)(d) of the Judicial Review Act 1991 (Qld) (“the JR Act”) or, in the alternative, that each party bear only their own costs pursuant to s 49(1)(e) of the JR Act.

The appellant’s submissions

6. The appellant submitted that s 49 of the JR Act displaces the general rule that costs follow the event.  The importance of issues raised in a review application, it was submitted, may support a costs order in favour of an otherwise unsuccessful applicant.  He referred to the decision of Douglas J in Meizer v Chief Executive, Dept of Corrective Services^[3] where the respondent was ordered to pay the applicant’s costs even though the application was summarily dismissed.  The basis for that court order was that the applicant was impecunious and the case was “one of the first occasions that this Court has been requested to consider the effect of the decision in Griffith University v Tang on the ability of prisoners to seek judicial review of decisions”.^[4]
7. The appellant submitted that this case involved a matter of public interest that is the “public interest in ensuring that persons detained against their will should not have any impediment put in their way which will inhibit them in seeking their liberty.”^[5]
8. The appellant relied on the following particular circumstances: the appellant is impecunious; the proceeding involved an “issue that affects, or may affect, the public interest, in addition to any personal right or interest of the relevant applicant” (s 49(2)(b)); and the proceeding disclosed “a reasonable basis for the review application” (s 49(2)(c)).
9. In the alternative, the appellant submitted that the circumstances supported an order that each party bear only their own costs under s 49(1)(e) of the JR Act.

The respondents’ submissions

10. The respondents’ submissions were not in accordance with the order of this Court which required compliance with paragraph 52(4) of Practice Direction 3 of 2013.  That practice direction limits submissions as to costs to two pages.  The respondents’ submissions extended over seven pages.  This non-compliance is most unsatisfactory, especially as the respondents should be model litigants who can be expected to comply with orders of this Court.  Nothing in the circumstances of this appeal gives rise to any suggestion that dispensation from the requirements of the practice direction is warranted.  Despite that non-compliance, and with considerable reluctance, this Court has considered the respondents’ contentions.
11. The respondents submitted that costs ought to follow the event.  They submitted that an application for another party to pay the applicant’s costs under s 49(1)(d) is prospective only and does not apply to a situation where the application for costs was made only after the substantive decision was handed down and the costs had been incurred before the costs application was made.  The respondents submitted that in any event the court should not exercise its discretion to order the respondents to pay the appellant’s costs or that each party bear its own costs in this particular case.  They submitted that the purpose of a costs order is compensatory but also referred to policy reasons for an order that costs should follow the event, referring to the reasons of McHugh J in Oshlack v Richmond River Council:^[6]

“As a matter of policy, one beneficial by-product of this compensatory purpose may well be to instil in a party contemplating commencing, or defending, litigation a sober realisation of the potential financial expense involved.  Large scale disregard of the principle of the usual order as to costs would inevitably lead to an increase in litigation with an increased, and often unnecessary, burden on the scarce resources of the publicly funded system of justice.”

12. The respondents submitted that it was the appellant’s own right to liberty and vindication of reputation that he was intent on protecting when he filed this appeal rather than any public interest; and that the section on which he sought a ruling was clear and unambiguous and therefore no reasonable basis for bringing these proceedings was disclosed.

Consideration

13. An application for costs such as this is governed by s 49 of the JR Act.  Subsection 49(4) provides that the rules of court made in relation to the awarding of costs apply to a proceeding arising out of a review application subject only to s 49.
14. Section 49(1) provides that a court may make an order if a costs application is made, inter alia, by an applicant to a review application.  A review application is defined in subsection 49(6) to include an appeal to the Court of Appeal in relation to an application for a statutory order of review.
15. If a costs application is made by such an applicant the court is empowered by s 49(1)(d) to order “that another party to the review application indemnify the relevant applicant in relation to the costs properly incurred in the review application by the relevant applicant, on a party and party basis, from the time the costs application was made.”  Alternatively, under s 49(1)(e), the court may make an order “that a party to the review application is to bear only that party’s own costs of the proceeding, regardless of the outcome of the proceeding.”
16. It can be seen from the terms of s 49(1)(d) that it is of no utility to the applicant in this case as, by its terms, the applicant could only have his costs from the time that the costs application was made.  The relevant application was made after the substantive decision on the appeal was delivered.
17. Subsection 49(2) sets out the factors the court is to have to regard to in considering a costs application under s 49(1)(e) on an appeal.  They are:

(1)The financial resources of the applicant (or any person associated with the relevant applicant who has an interest in the outcome of the proceeding) (s  49(2)(a)); and

(2)Whether the proceeding involves an issue that affects, or may affect, the public interest, in addition to any personal right or interest of the relevant applicant (s 49(2)(b)); and

(3)Whether the proceeding discloses a reasonable basis for the appeal to the Court of Appeal (s 49(2)(e)).

18. It was conceded that the appellant had limited means.  As the appellant submitted, he was granted a fee reduction on the review application.  At the time the submissions were made the appellant was receiving a Newstart allowance from Centrelink and had debts of more than $10,000.  Prisoners’ Legal Service paid the filing fee for the appeal on behalf of the appellant as he was not in a position to meet that cost.
19. As to whether or not the proceedings involved an issue that affects the public interest the topic of this proceeding relates to a matter of clear public interest, dealing as it did with the impact of an administrative order on the length of a sentence prior to a prisoner’s release on parole that had been imposed by a judge.  This concerned a number of issues of public interest, in particular the respective roles of two quite separate arms of government – the administrative branch and the judicial branch.  It involved the liberty of the person which is a fundamental right capable of being taken away only by clear words in a statute; the certainty of terms of imprisonment; and it potentially has an effect on many sentences imposed by the courts on serving prisoners and into the future.  It is in the public interest that the issues involved in this appeal have been clarified.
20. Although ultimately unsuccessful, there was a reasonable basis for bringing the application.  The appeal involved the interpretation of the Penalties and Sentences Act 1992 (Qld) and the Corrective Services Act 2006 (Qld) and the interaction between them.  The specific questions raised had never previously been determined by an appellate court.
21. I would therefore order that each party is to bear their own costs of the appeal pursuant to s 49(1)(e) of the JR Act.

Order

22. Each party to the appeal is to bear their own costs of the appeal pursuant to s 49(1)(e) of the Judicial Review Act 1991 (Qld).