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  4. Hunt v Chief Health Officer [No 2] - [2023] QCA 264

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Hunt v Chief Health Officer [No 2][2023] QCA 264

Hunt v Chief Health Officer [No 2][2023] QCA 264

SUPREME COURT OF QUEENSLAND

CITATION:

Hunt & Ors v Dr John Gerrard, Chief Health Officer & Anor; Ishiyama & Ors v Dr Peter Aitken, Former Chief Health Officer & Ors; Baxter & Ors v Dr John Gerrard, Chief Health Officer & Anor [No 2] [2023] QCA 264

PARTIES:

In Appeal No 4272 of 2022:

THOMAS GORDON HUNT

(first appellant)

KALIESHA LEE O'KEEFE

(second appellant)

OCHRE CATERING PTY LTD

ACN 605 220 693

(third appellant)

TROJON HOSPITALITY PTY LTD

ACN 648 268 713

(fourth appellant)

BEAN OBSCENE PTY LTD

ACN 165 542 138

(fifth appellant)

SKY MAKAYLA RIXON

(sixth appellant)

MISSION BEACH TAVERN PTY LTD

ACN 167 635 921

(seventh appellant)

MIGHTY MAC PTY LTD

ACN 641 483 669

(eighth appellant)

MARBEL FOXHOLE PTY LTD

ACN 624 784 872

(ninth appellant)

DAITHI JUDE SPALDING

(tenth appellant)

KANGAVENTURE PTY LTD

ACN 117 452 098

(eleventh appellant)

JAR CONSULTING SERVICES PTY LTD

ACN 602 440 184

(twelfth appellant)

v

DR JOHN GERRARD, CHIEF HEALTH OFFICER

(first respondent)

STATE OF QUEENSLAND

(second respondent)

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(first intervener)

QUEENSLAND HUMAN RIGHTS COMMISSION

(second intervener)

In Appeal No 4273 of 2022:

CHERIE JEAN ISHIYAMA

(first appellant)

ROBERT WILLIAM WYLIE

(second appellant)

PETER GRANT MERRILL

(third appellant)

MEGAN RUTH PYNE

(fourth appellant)

SARAH DEW

(fifth appellant)

MEAGAN CLARE CURNOW

(sixth appellant)

MANDA SMOLCIC

(seventh appellant)

v

DR PETER AITKEN, FORMER CHIEF HEALTH OFFICER

(first respondent)

DR JOHN GERRARD, CHIEF HEALTH OFFICER

(second respondent)

STATE OF QUEENSLAND

(third respondent)

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(first intervener)

QUEENSLAND HUMAN RIGHTS COMMISSION

(second intervener)

In Appeal No 4758 of 2022:

BENJAMIN ELLIOT VIGNAND BAXTER

(first appellant)

VALERIE BRYCE

(second appellant)

PETER PARRY

(third appellant)

ANTHONY FRANCIS O'BRIEN

(fourth appellant)

RACHEL MAREE ARAMBEPOLA

(fifth appellant)

DONNA GRAY

(sixth appellant)

CASSANDRA SHELLEY FRITH

(seventh appellant)

PETER DAMIEN STANWAY

(eighth appellant)

SUSAN VERA McLEVIE

(ninth appellant)

ANNABEL HILARY MAWBEY

(tenth appellant)

CHARLES IAN McDONALD

(eleventh appellant)

ANDREW BARRY RAWLINGS

(twelfth appellant)

MARY-JANE STEVENS

(thirteenth appellant)

KAREN LEANNE NORTH

(fourteenth appellant)

MELANIE TRAKOSAS

(fifteenth appellant)

BENJAMIN NOSOV

(sixteenth appellant)

JOSHUA TUNLEY

(seventeenth appellant)

SIMON MORRISON

(eighteenth appellant)

CAMERON EVERS

(nineteenth appellant)

MICHAEL STUTH

(twentieth appellant)

DONNA BOWMAN

(twenty-first appellant)

PETER THOMSON

(twenty-second appellant)

DAREN LONGOBARDI

(twenty-third appellant)

v

DR JOHN GERRARD, CHIEF HEALTH OFFICER

(first respondent)

STATE OF QUEENSLAND

(second respondent)

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(first intervener)

QUEENSLAND HUMAN RIGHTS COMMISSION

(second intervener)

FILE NO/S:

Appeal No 4272 of 2022

Appeal No 4273 of 2022

Appeal No 4758 of 2022

SC No 966 of 2022

SC No 367 of 2022

SC No 508 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Miscellaneous Application – Civil

ORIGINATING COURT:

Supreme Court at Brisbane – [2022] QSC 41 (Dalton J)

DELIVERED ON:

19 December 2023

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Morrison and Flanagan JJA and Davis J

ORDERS:

  1. Leave to re-open the question of costs in Appeal No 4272 of 2022, Appeal No 4273 of 2022 and Appeal No 4758 of 2022 is granted.
  2. In Appeal No 4272 of 2022, the appellants pay the respondents’ costs of and incidental to the appeal.
  3. In Appeal No 4273 of 2022, the appellants pay the respondents’ costs of and incidental to the appeal.
  4. In Appeal No 4758 of 2022, the appellants pay the respondents’ costs of and incidental to the appeal.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COURT SUPERVISION – IRREGULARITIES AND NON-COMPLIANCE WITH RULES – where the respondents seek to make submissions on costs some 10 months after judgment was delivered in the substantive appeals – where the respondents neglected to seek the necessary leave to do so due to counsel oversight – where the court had not made any order as to costs – where no prejudice will be suffered by the appellants – where there is merit in the costs argument which the respondents seek to advance – whether the justice of the case favours an exercise of discretion to permit the proposed arguments to be made

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW EVENT – where the appellants were wholly unsuccessful in the substantive appeals – where the respondents submit that costs ought to follow the event – where the appellants submit that no order as to costs should be made because the proceedings were in the public interest and the outcome of the appeals was of significant benefit to the respondents in the discharge of their functions – whether there are special or exceptional circumstances to warrant depriving the successful respondents of their costs

Judicial Review Act 1991 (Qld), s 38, s 50

Public Health Act 2005 (Qld), s 362B

Uniform Civil Procedure Rules 1999 (Qld), r 681

Baxter & Ors v Gerrard & Ors [2023] HCASL 82, related

Courtney v Chalfen [2021] QCA 25, cited

Enkelmann & Ors v Stewart & Anor [No 2] [2023] QCA 198, followed

Hollier v Australian Maritime Safety Authority (No 2) [1998] FCA 975, cited

Ishiyama & Ors v Dr Peter Aitken, Former Chief Health Officer & Ors; Baxter & Ors v Dr John Gerrard, Chief Health Officer & Anor; Hunt & Ors v Dr John Gerrard, Chief Health Officer & Anor [2022] QSC 41, related

Jacob v Save Beeliar Wetlands (Inc) [2016] WASCA 126 (S), considered

Loielo v Giles (No 2) [2020] VSC 864, distinguished

Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11, considered

Speets Investment Pty Ltd v Bencol Pty Ltd (No 2) [2021] QCA 39, cited

The State of Western Australia v Collard [2015] WASCA 86, cited

COUNSEL:

C S Ward SC, with P F Santucci and K A Morris, for the appellants in Appeal No 4758 of 2022

P Zappia KC, with N C Dour, for the appellants in Appeal No 4272 of 2022 and 4273 of 2022

S A McLeod KC, with B I McMillan and P H Nevard, for the respondents

SOLICITORS:

Alexander Law for the appellants in all appeals

G R Cooper, Crown Solicitor for the respondents

  1. [1]
    MORRISON JA:  I agree with the reasons of Flanagan JA and the orders his Honour proposes.
  2. [2]
    FLANAGAN JA:  Judgment in these three appeals was delivered on 16 December 2022.[1]  The appellants were wholly unsuccessful.  Davis J dissented in the result.  The only order made was one dismissing the appeals.  No order was made as to costs.  Nor was any order made inviting written submissions from the parties on costs.  The practical result of no order being made as to costs was that each party was to bear their own costs of the appeals.
  3. [3]
    The primary issue on appeal was whether the decisions of the Chief Health Officer (“CHO”) to give five public health directions pursuant to s 362B of the Public Health Act 2005 (Qld) (“PHA”) were, for the purposes of the Judicial Review Act 1991 (Qld) (“JRA”), decisions of an administrative character.  Relevantly, the appeals were from orders dismissing the appellants’ interlocutory applications by which they sought orders, pursuant to s 38 of the JRA, compelling the production of a statement of reasons for each impugned decision.[2]  The orders sought could only be made if the decisions to give the directions were of an administrative character.  Both the learned primary judge and this Court (by a majority) held that they were not.
  4. [4]
    The respondents now apply for an order in each of the appeals that their costs of the appeals be paid by the appellants.  The applications were filed on 18 October 2023, some 10 months after this Court delivered judgment.
  5. [5]
    Paragraph 52 of Practice Direction 3 of 2013 of the Supreme Court of Queensland (“the Practice Direction”) requires that any party who wishes to make submissions or further submissions on costs after the hearing of an appeal must apply for leave to do so in their written outlines of argument and/or orally at the hearing.
  6. [6]
    The respondents concede that they did not comply with the Practice Direction in relation to the appeals in the present proceedings.[3]  They did not seek any order as to costs in their written outline of argument, or at the hearing of the appeals, or when judgment was delivered.  This failure is said to have been due to an oversight by counsel.
  7. [7]
    The respondents’ applications can be characterised as either applications to re-open or applications under the slip rule.[4]  As mentioned, the issue of costs was neither traversed at the hearing of the appeals nor the subject of an order upon the delivery of judgment.  Whether leave ought to now be granted must be considered by reference to the chronology of these proceedings and the principles recently identified by this Court in Enkelmann & Ors v Stewart & Anor [No 2] (“Enkelmann [No 2]”).[5]

Background

  1. [8]
    Between December 2021 and February 2022, the CHO relevantly gave five public health directions in response to the COVID-19 pandemic.  Soon after, the appellants commenced proceedings in the Trial Division seeking statutory orders of review under Part 3 of the JRA, prerogative orders under Part 5 of the JRA and declaratory relief.
  2. [9]
    On 5 April 2022 the primary judge dismissed the appellants’ interlocutory applications in each proceeding.  The costs of the applications were regulated by s 50 of the JRA, which relevantly provides:
  1. “50
    Costs—application for reasons for decision
  1. On an application to the court under part 4 in which the respondent to the application is the person to whom a request was made under section 32 for a statement in relation to a decision, the court—
  1. …
  1. (b)
    may only order that the applicant pay the costs of the respondent—
  1. (i)
    if the applicant is wholly unsuccessful in obtaining the relief sought; and
  1. (ii)
    if the application—
  1. (A)
    does not disclose a reasonable basis; or
  1. (B)
    is frivolous or vexatious; or
  1. (C)
    is an abuse of the process of the court.”
  1. [10]
    Consequently, notwithstanding that the appellants were unsuccessful, the primary judge could only order that the appellants pay the respondents’ costs if the applications failed to disclose a reasonable basis, were frivolous or vexatious, or were an abuse of process.  The respondents did not seek an order as to costs as it could not be said that the applications met any of those criteria.[6]  Accordingly, no costs order was made.
  2. [11]
    As mentioned, on 16 December 2022 this Court delivered judgment in the appeals in each proceeding.  The costs of the appeals were not regulated by s 50.  Despite this, the respondents did not seek an order as to costs or otherwise seek to raise the question at the appropriate times.  Accordingly, the only order made was one dismissing the appeals.
  3. [12]
    On 10 January 2023 the appellants in the Baxter appeal applied for special leave to appeal to the High Court of Australia.
  4. [13]
    On 19 January 2023 Crown Law sent a letter to the Ishiyama, Hunt and Baxter appellants’ solicitor regarding the costs of each of the appeals and requesting a response by 27 January 2023.[7]   The letter proposed that:
    1. in the Ishiyama and Hunt appeals, the parties consent to an order “That the appellants pay the respondents’ costs of and incidental to the appeal on the standard basis, to be assessed failing agreement”; and
    2. in the Baxter appeal, the parties await the outcome of the special leave application before determining the appropriate order as to costs.

The letter foreshadowed that unless the Ishiyama and Hunt appellants consented to the proposed order by 27 January 2023, the respondents intended to file an application seeking an order to that effect.

  1. [14]
    On 2 February 2023 the appellants’ solicitor sent an email to Crown Law responding to the correspondence dated 19 January 2023.[8]  The email proposed that the question of costs in the Ishiyama and Hunt appeals also await the outcome of the special leave application.
  2. [15]
    On 14 February 2023 Crown Law sent a letter to the appellants’ solicitor responding to the email dated 2 February 2023 and requesting a response by 17 February 2023.[9]  The letter stated that the “respondents do not accept that the question of costs of [the Ishiyama and Hunt] appeals should be deferred pending the outcome of the special leave application in Baxter”.  This was on the basis that the outcome of the special leave application would not affect the outcome of the Ishiyama and Hunt appeals which had been finally determined.  Once again, the letter foreshadowed that unless the previously proposed order was consented to by 17 February 2023, the respondents intended to file an application for costs.
  3. [16]
    No response to the letter dated 14 February 2023 was ever received.
  4. [17]
    On 18 May 2023 the special leave application was dismissed with costs on the basis that “[t]here is no apparent utility in the proposed ground of appeal and the Court of Appeal diverged only on the application of well-established factors for the characterisation of an exercise of power as administrative in character”.[10]
  5. [18]
    On 24 May 2023 Crown Law sent a letter to the appellants’ solicitor noting that the special leave application was dismissed with costs and proposing the appellants consent to an order “That the appellants pay the respondents’ costs of and incidental to the appeal”.[11]  The letter requested a response by 31 May 2023 and again foreshadowed that, failing receipt of the appellants’ consent, the respondents intended to file an application for costs.
  6. [19]
    No response to the letter dated 24 May 2023 was ever received.  However, as mentioned, the respondents’ applications were not filed until 18 October 2023.

Respondents’ submissions

  1. [20]
    The respondents submit that in circumstances where they were wholly successful in each of the appeals and the appellants were wholly unsuccessful, costs ought to follow the event.  Their argument has three parts.
  2. [21]
    First, in relation to the question of leave, the respondents accept that the delay in bringing the present applications was “lengthy”, but submit that it is attributable, at least in part, to (i) the desire of the Ishiyama and Hunt appellants to defer the issue of costs in their appeals until after the special leave application; (ii) the apparent refusal by the appellants to consent to the proposed order as to costs, even after the special leave application had been determined; and (iii) the failure by the appellants to respond to correspondence.
  3. [22]
    Secondly, also in relation to the question of leave, the respondents submit that there is no prejudice to the appellants in terms of the timing of the applications.  Two bases were identified for this submission.  First, the appellants were aware of the respondents’ intention to seek costs at an early stage.  Secondly, it was the Ishiyama and Hunt appellants who requested that the issue of costs in their appeals be deferred pending the outcome of the special leave application in the Baxter appeal.  The respondents further submit that, should an order for costs not be made, the prejudice they will suffer is “self-evident” in that they will be required to fund the costs of the appeals despite being wholly successful.
  4. [23]
    Finally, if leave is granted, the respondents submit that this is not a case like Oshlack v Richmond River Council[12] where the public interest considerations are such as to warrant a departure from the general rule.  They emphasise that because “no part of the appeals was concerned with the legitimacy of the underlying impugned decisions”,[13] the appeals did not resolve the matters of public interest at issue in the substantive proceedings.

Appellants’ submissions

  1. [24]
    The appellants submit that leave to re-open should not be granted.  If leave is granted however, they submit that this Court should order that each party bear its own costs of the appeals.
  2. [25]
    The Ishiyama and Hunt appellants submit that the respondents’ explanation for not complying with the Practice Direction is “unsatisfactory and unconvincing” because the respondents were at all times represented by experienced solicitors and counsel.  The Baxter appellants, who filed separate written submissions, make a similar submission.
  3. [26]
    The Baxter appellants further submit that the “lengthy” delay has caused them “irreparable prejudice”.  They say that had they suffered an adverse costs order before the special leave application, it would have been open to them to respond to the “inutile” submission put against them by the respondents by pointing to such adverse costs which a successful appeal could be expected to set aside.[14]
  4. [27]
    If leave is granted, the appellants submit that no costs order should be made because the appeals clarified a number of issues of public importance, including whether the impugned decisions were subject to review under Part 3 of the JRA.  By reference to the recent decision in Loielo v Giles (No 2),[15] the Baxter appellants submit that there is a recognised public interest in litigation concerning COVID-19 restrictions.  The Baxter appellants also submit that s 50 of the JRA, while it does not apply to appeals, recognises that applications under s 38 are “necessarily in the public interest”.  For their part, the Ishiyama and Hunt appellants submit that the respondents derived a “significant benefit” from the clarification of COVID-19 legislation affecting Queensland which warrants a departure from the general rule.[16]

Consideration of leave

  1. [28]
    The approach to be taken on applications such as these was recently summarised by this Court in Enkelmann [No 2] (original citations):[17]

“Whether the application is dealt with as an application for leave to re-open or an application under the slip rule, the critical question is whether the justice of the case favours an exercise of discretion to permit the proposed argument to be made, bearing in mind the overriding philosophy expressed in r 5 of the UCPR.  Without being exhaustive, or unduly prescriptive, relevant considerations in a case such as the present would necessarily include –

  1. the public interest in litigation being conducted efficiently and to finality at the time of the listed appeal hearing;[18]
  1. the modification to that course contemplated by the fact and terms of paragraph 52 of Practice Direction 3 of 2013;
  1. the expectation of the Court and the parties that parties will comply with the Practice Direction;
  1. the explanation for the non-compliance with the Practice Direction;
  1. the extent of any delay in bringing the application;[19]
  1. the prejudice which the applicants might suffer if the application is refused, noting that a consideration of the merits of the argument which is sought to be advanced may shed light on that question;[20]
  1. the prejudice to the respondents if the application is allowed.[21]

The present discretion is untrammelled although it must be exercised judicially, having regard to the considerations which are relevant to it.  Observations made in previous cases in different contexts cannot be regarded as laying down rigid rules confining its exercise.  Such observations may be better regarded as emphases made in particular cases in response to particular considerations which justified such emphases.  Thus in De L v Director-General, NSW Department of Community Services [No 2], the High Court referred to its undoubted jurisdiction to re-open its judgments or orders, where the interests of justice so required; acknowledged statements in previous cases that a heavy burden was cast upon an applicant for reopening to show that such an exceptional course was required “without fault on his part”, that is “without the attribution of neglect or default to the party seeking reopening”, but nevertheless concluded the case was a proper one for re-opening despite the fact that there had been fault on the part of the applicant.[22]  We do not accept the submission that in the present context, the justice of the case requires the appellants to demonstrate exceptional circumstances (let alone lack of fault), as though that was some form of condition governing the exercise of the present discretion.”

  1. [29]
    There is no doubt that if the respondents had indicated, either at the hearing of the appeals or in their written submissions, that they wished to be heard in relation to costs, the parties would have been afforded such an opportunity.  It may be accepted, as it was in Enkelmann [No 2],[23] that the respondents’ failure to comply with the Practice Direction in relation to the making of submissions on costs was due to an oversight by counsel.
  2. [30]
    As to the “irreparable prejudice” suggested by the Baxter appellants, no such prejudice arises.  The special leave application was refused on the basis that this Court’s decision “involved the application of well-established factors”.  An adverse costs order would not have affected the outcome of the special leave application.  Further, if the Baxter appellants wished for the issue of costs to be resolved prior to the special leave application, there was ample opportunity to express that preference, having been aware at an early stage that the respondents’ intended to seek costs.  The Ishiyama and Hunt appellants did not identify why they would be prejudiced if the applications were to be allowed.
  3. [31]
    The main hurdle for the respondents in relation to the question of leave is the extent of the delay in bringing the applications.  As they accept, it was “lengthy”.  This is not a case however, where the respondents sat idle while time passed.  The delay arose in the context of the respondents seeking to obtain the appellants’ consent to a proposed order as to costs.  From the Court’s perspective, attempts by parties to resolve disputes by consent are desirable and ought to be encouraged.  Further, for the reasons identified by the respondent (which are outlined at [20] above), at least part of the delay can be attributed to the appellants’ conduct, which persisted even after special leave to appeal was refused.  While the respondents could have brought the applications far sooner, it would be inappropriate to withhold leave on this basis alone, particularly in circumstances where there is no prejudice to the appellants and, as is explained below, there is merit in the costs argument which the respondents seek to advance.
  4. [32]
    Accordingly, leave ought to be granted.

Costs should follow the event

  1. [33]
    The Court’s discretion to award costs under r 681 of the Uniform Civil Procedure Rules 1999 (Qld) is broad but must be exercised judicially and consistently with the scope and purpose of the power.[24]  Costs will generally follow the event unless there are “special or exceptional circumstances to warrant depriving a successful party of its costs”.[25]
  2. [34]
    In this case, the appellants submit that there are special circumstances justifying a departure from the general rule that a successful party is entitled to its costs.  Put shortly, the appellants contend that the proceedings involved what is commonly described as “public interest litigation”.[26]  The appellants submit that there should be no order as to costs.
  3. [35]
    These submissions should be rejected.  There are no special circumstances which justify a departure from the usual order as to costs.
  4. [36]
    In Jacob v Save Beeliar Wetlands (Inc),[27] which is a case relied on by the Ishiyama and Hunt appellants, Buss and Newnes JJA made the following observations:

“The circumstances that will justify a departure from the usual order as to costs on the ground that the proceedings were in the public interest are not susceptible of comprehensive description.  Each case will turn on its own facts.  It will not, however, be sufficient simply that the proceedings were brought otherwise than for the personal or financial benefit of the plaintiff – although, on the other hand, where the plaintiff stood to gain significant private benefit from the litigation that will ordinarily weigh heavily against departing from the usual rule as to costs: The State of Western Australia v Collard [2015] WASCA 86 [46].  Nor will it be sufficient that the case raised for the first time the meaning or operation of a legislative provision in which there was a public interest in the outcome, or that it resolved a conflicting line of authority, or that it otherwise had a wider legal importance than it has to the individual litigants, as that is an inherent feature of common law litigation:  Oshlack [75]; William Hollier v Australian Maritime Safety Authority (No 2) [1998] FCA 975; Collard [32].  And whether litigation bears a public interest character is not determined by the degree of interest in it shown by members of the public but objectively by the extent to which it serves the public interest.

As this court observed in Collard (at [38]), there are cases where the court has departed from the usual order as to costs in litigation which has involved the proper construction of statutory provisions of significant public import on the basis that the proceedings were ‘public interest’ litigation.  But the exceptional nature of such an outcome has been repeatedly emphasised.  A feature in some of the cases has been that the successful party denied an order for costs derived a significant benefit from the litigation in the clarification of a statutory provision of ongoing importance to its regulatory or other public functions.”

  1. [37]
    There is no denying that the impugned decisions of the CHO had a significant effect on individuals’ rights and liberties.  To this extent, the substantive proceedings commenced by the appellants, which remain on foot and concern the validity of the impugned decisions, involve a consideration of public rather than private rights.  The present appeals, however, were from an interlocutory decision on applications brought by the appellants pursuant to s 38 of the JRA.  No part of the appeals was concerned with the validity of the impugned decisions.  In this sense, and contrary to the appellants’ submission, the recent decision of the Victorian Supreme Court in Loielo v Giles (No 2) is of no real assistance in the present case, being concerned with a different point.  The unsuccessful applicant in that case had challenged a decision made by the Victorian Deputy Public Health Commander to give a COVID-19 direction which imposed a curfew.  Ginnane J dismissed the substantive judicial review proceedings.  In ordering that each party bear their own costs, his Honour placed particular reliance on the public interest in the validity of the decision to give the COVID-19 direction.  Here, however, the validity of the impugned decisions remains at issue in the substantive proceedings which are yet to be determined.
  2. [38]
    As mentioned, the primary issue in the appeals was whether the impugned decisions were of an administrative character for the purposes of the JRA.  Contrary to the appellants’ submission, the fact that the appeals involved an analysis of statutory provisions which clarified the availability of particular relief, and which may prove helpful in future cases, is not of itself sufficient to establish circumstances that justify a departure from the usual order.  Such features may be present in many actions between private citizens which on any view would not be characterised as “public interest litigation”.[28]  As the Full Court of the Federal Court pointed out in Hollier v Australian Maritime Safety Authority (No 2):[29]

“In a common law jurisdiction decisions of the courts, in private as well as public law, often clarify the law or lay down new law for the benefit of its citizens, taxpayers, traders, patentees, insurers and insureds, landlords and tenants, etc etc.  To that extent, much litigation has a public interest going beyond the interests of the parties.  But this feature is inherent in common law litigation and provides no ground for departure from the usual rule as to costs.”

  1. [39]
    Further, contrary to the Ishiyama and Hunt appellants’ submission, it cannot be said that the outcome of the appeals was of any significant benefit to the respondents in the discharge of their functions.  The characterisation of the impugned decisions as legislative in character has only limited benefit to the respondents.  It cannot be described as “significant”.  Such characterisation is in no way determinative of the validity or otherwise of the impugned decisions.  The effect of the characterisation is that the appellants are no longer able to challenge the decisions under Part 3 of the JRA or obtain, pursuant to s 38, statements of reasons for the decisions.  Further, the entirety of Part 7A of the PHA, which contained the power under which the impugned decisions were made, has since expired and no longer applies in Queensland.
  2. [40]
    It is also necessary to say something about the effect of s 50 of the JRA which, as already mentioned, was the statutory basis on which the primary judge made no order as to costs.  The Baxter appellants submit that although s 50 does not, in terms, apply to appeals, the relevant underlying policy considerations should inform the appropriate costs order on appeal.  This submission should not be accepted.  If s 50 was to inform the costs outcome of appeals from applications under s 38 of the JRA, it would have the practical effect that an unsuccessful applicant would have a “free kick” in terms of the costs consequences in bringing an appeal.  Even in circumstances where an appeal enjoyed poor prospects of success and the appellant was ultimately unsuccessful, s 50 should not inform the appropriate costs outcome.  As the legislature has not extended the costs protection under s 50 to appeals, litigants in the appellants’ position, even if it was thought they were pursuing matters in the public interest, should not be “granted an immunity from costs or a ‘free kick’ in litigation”.[30]
  3. [41]
    The circumstances of this case could not be considered to be of the “rare and exceptional character” that might justify a departure from the usual order as to costs.[31]

Disposition

  1. [42]
    I propose the following orders:
  1. Leave to re-open the question of costs in Appeal No 4272 of 2022, Appeal No 4273 of 2022 and Appeal No 4758 of 2022 is granted.
  2. In Appeal No 4272 of 2022, the appellants pay the respondents’ costs of and incidental to the appeal.
  3. In Appeal No 4273 of 2022, the appellants pay the respondents’ costs of and incidental to the appeal.
  4. In Appeal No 4758 of 2022, the appellants pay the respondents’ costs of and incidental to the appeal.
  1. [43]
    DAVIS J:  The respondents apply for costs of the appeals.
  2. [44]
    In the appeals, I was in dissent.  I would have ordered the delivery of reasons for the decisions of the Chief Health Officer.
  3. [45]
    As my view did not prevail, the question of costs falls for determination on the basis that the respondents were successful in the appeals and the starting point is that costs follow the event.
  4. [46]
    For the reasons given by Flanagan JA, I agree that the application for costs ought to be entertained, notwithstanding that the Practice Direction was not complied with.
  5. [47]
    For the reasons given by Flanagan JA, there are no sufficient reasons to depart from the general rule that costs follow the event.
  6. [48]
    I agree with the orders proposed by Flanagan JA.

Footnotes

[1] Hunt & Ors v Dr John Gerrard, Chief Health Officer & Anor; Ishiyama & Ors v Dr Peter Aitken, Former Chief Health Officer & Ors; Baxter & Ors v Dr John Gerrard, Chief Health Officer & Anor [2022] QCA 263.

[2] Ishiyama & Ors v Dr Peter Aitken, Former Chief Health Officer & Ors; Baxter & Ors v Dr John Gerrard, Chief Health Officer & Anor; Hunt & Ors v Dr John Gerrard, Chief Health Officer & Anor [2022] QSC 41.

[3]  Respondents’ Written Outline of Submissions, [6].

[4] Enkelmann & Ors v Stewart & Anor [No 2] [2023] QCA 198, [15].

[5]  [2023] QCA 198, [16]–[17].

[6]  Respondents’ Written Outline of Submissions, [12].

[7]  Affidavit of Luke Edward Grayson affirmed 18 October 2023, Exhibit LEG-1.

[8]  Affidavit of Luke Edward Grayson affirmed 18 October 2023, Exhibit LEG-2.

[9]  Affidavit of Luke Edward Grayson affirmed 18 October 2023, Exhibit LEG-3.

[10] Baxter & Ors v Gerrard & Ors [2023] HCASL 82.

[11]  Affidavit of Luke Edward Grayson affirmed 18 October 2023, Exhibit LEG-4.

[12]  (1998) 193 CLR 72.

[13]  Respondents’ Written Outline of Submissions, [4].

[14]  Baxter Appellants’ Written Outline of Submissions, [5]–[6].

[15]  [2020] VSC 864.

[16]  Ishiyama and Hunt Appellants’ Written Outline of Submissions, [8] citing Jacob v Save Beeliar Wetlands (Inc) [2016] WASCA 126 (S), [40] per Buss and Newnes JJA.

[17] Enkelmann & Ors v Stewart & Anor [No 2] [2023] QCA 198, [16]–[17].

[18] Davies v Davies & Anor (No 1) [2019] QSC 293, [10] per Bradley J; Gallagher v Boylan [2013] 1 Qd R 204, [18] per Fraser JA.

[19] Davies v Davies & Anor (No 1) [2019] QSC 293, [10] per Bradley J; Gould v Vaggelas (1985) 157 CLR 215, 276 per Gibbs CJ, Wilson, Brennan and Dawson JJ; L Shaddock & Associates Pty Ltd v Parramatta City Council [No 2] (1982) 151 CLR 590, 597 per Mason ACJ, Wilson and Deane JJ cited in Thakral Fidelity Pty Ltd v Commissioner of Stamp Duties (No 2) [2001] 1 Qd R 428, [6] per McPherson JA.

[20] Davies v Davies & Anor (No 1) [2019] QSC 293, [10] per Bradley J; Gould v Vaggelas (1985) 157 CLR 215, 275 per Gibbs CJ, Wilson, Brennan and Dawson JJ.

[21] Davies v Davies & Anor (No 1) [2019] QSC 293, [10] per Bradley J; L Shaddock & Associates Pty Ltd v Parramatta City Council [No 2] (1982) 151 CLR 590, 597 per Mason ACJ, Wilson and Deane JJ cited in Thakral Fidelity Pty Ltd v Commissioner of Stamp Duties (No 2) [2001] 1 Qd R 428, [6] per McPherson JA.

[22] De L v Director-General, NSW Department of Community Services [No 2] (1997) 190 CLR 207, 215–216.

[23] Enkelmann & Ors v Stewart & Anor [No 2] [2023] QCA 198, [9].

[24] Oshlack v Richmond River Council (1998) 193 CLR 72, 81 [22] per Gaudron and Gummow JJ.

[25] Courtney v Chalfen [2021] QCA 25, [5]; Speets Investment Pty Ltd v Bencol Pty Ltd (No 2) [2021] QCA 39, [16].

[26] Oshlack v Richmond River Council (1998) 193 CLR 72, 84 [30] per Gaudron and Gummow JJ, 126 [143] per Kirby J.

[27]  [2016] WASCA 126 (S), [39]–[40].

[28] Oshlack v Richmond River Council (1998) 193 CLR 72, 100 [74] per McHugh J.

[29]  [1998] FCA 975, page 5.

[30] Oshlack v Richmond River Council (1998) 193 CLR 72, 123 [134] per Kirby J citing Australian Conservation Foundation v Forestry Commission (1988) 76 LGRA 381, 385–386; Botany Municipal Council v Secretary, Department of the Arts (1992) 34 FCR 412 per Gummow J.

[31] The State of Western Australia v Collard [2015] WASCA 86, [38] per Buss, Newnes and Murphy JJA.

Close

Editorial Notes

  • Published Case Name:

    Hunt & Ors v Dr John Gerrard, Chief Health Officer & Anor; Ishiyama & Ors v Dr Peter Aitken, Former Chief Health Officer & Ors; Baxter & Ors v Dr John Gerrard, Chief Health Officer & Anor [No 2]

  • Shortened Case Name:

    Hunt v Chief Health Officer [No 2]

  • MNC:

    [2023] QCA 264

  • Court:

    QCA

  • Judge(s):

    Morrison JA, Flanagan JA, Davis J

  • Date:

    19 Dec 2023

  • White Star Case:

    Yes

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2022] QSC 4105 Apr 2022Applications seeking statements of reasons (Judicial Review Act 1991 (Qld) ss 32, 38) for certain public health directions concerning vaccination given by Chief Health Officer during COVID-19 pandemic (Public Health Act 2005 (Qld) s 362B); applications dismissed: Dalton J.
Appeal Determined (QCA)[2022] QCA 263 (2022) 13 QR 116 Dec 2022Appeals dismissed: Flanagan JA (Morrison JA agreeing), Davis J dissenting.
Appeal Determined (QCA)[2023] QCA 26419 Dec 2023Leave to reopen question of costs granted; in each appeal, appellants pay respondents' costs: Flanagan JA (Morrison JA and Davis J agreeing).
Application for Special Leave (HCA)File Number: B3/202310 Jan 2023Application for special leave to appeal filed.
Special Leave Refused (HCA)[2023] HCASL 8218 May 2023Special leave refused: Gageler and Gleeson JJ.

Appeal Status

Appeal Determined - Special Leave Refused (HCA)

Cases Cited

Case NameFull CitationFrequency
Australian Conservation Foundation v Forestry Commission (Tas) (1988) 76 LGRA 381
1 citation
Jump To
Cite 1 - (1988) 76 LGRA 381
Baxter & Ors v Gerrard & Ors [2023] HCASL 82
2 citations
Jump To
Cite 1 - [2023] HCASL 82
Cite 2 - [2023] HCASL 82
Botany Municipal Council v Secretary, Department of the Arts (1992) 34 FCR 412
1 citation
Jump To
Cite 1 - (1992) 34 FCR 412
Courtney v Chalfen [2021] QCA 25
2 citations
Jump To
Cite 1 - [2021] QCA 25
Cite 2 - [2021] QCA 25
Davies v Davies [2019] QSC 293
4 citations
Jump To
Cite 1 - [2019] QSC 293
Cite 2 - [2019] QSC 293
Cite 3 - [2019] QSC 293
Cite 4 - [2019] QSC 293
Enkelmann v Stewart [No 2] [2023] QCA 198
5 citations
Jump To
Cite 1 - [2023] QCA 198
Cite 2 - [2023] QCA 198
Cite 3 - [2023] QCA 198
Cite 4 - [2023] QCA 198
Cite 5 - [2023] QCA 198
Gallagher v Boylan[2013] 1 Qd R 204; [2012] QCA 159
1 citation
Jump To
Cite 1 - [2013] 1 Qd R 204
Gould v Vaggelas (1985) 157 CLR 215
2 citations
Jump To
Cite 1 - (1985) 157 CLR 215
Cite 2 - (1985) 157 CLR 215
Hunt v Chief Health Officer(2022) 13 QR 1; [2022] QCA 263
1 citation
Jump To
Cite 1 - [2022] QCA 263
Ishiyama v Former Chief Health Officer [2022] QSC 41
3 citations
Jump To
Cite 1 - [2022] QSC 41
Cite 2 - [2022] QSC 41
Cite 3 - [2022] QSC 41
L. Shaddock & Associates Pty. Ltd. v Parramatta City Council (1982) 151 CLR 590
2 citations
Jump To
Cite 1 - (1982) 151 CLR 590
Cite 2 - (1982) 151 CLR 590
N.S.W. Department of Community Services [No. 2] (1997) 190 CLR 207
1 citation
Jump To
Cite 1 - (1997) 190 CLR 207
Oshlack v Richmond River Council (1998) 193 CLR 72
6 citations
Jump To
Cite 1 - (1998) 193 CLR 72
Cite 2 - (1998) 193 CLR 72
Cite 3 - (1998) 193 CLR 72
Cite 4 - (1998) 193 CLR 72
Cite 5 - (1998) 193 CLR 72
Cite 6 - (1998) 193 CLR 72
Oshlack v Richmond River Council (1998) HCA 11
1 citation
Jump To
Cite 1 - (1998) HCA 11
Speets Investment Pty Ltd v Bencol Pty Ltd (No 2) [2021] QCA 39
2 citations
Jump To
Cite 1 - [2021] QCA 39
Cite 2 - [2021] QCA 39
Thakral Fidelity Pty Ltd v Commissioner of Stamp Duties (No 2) [2001] 1 Qd R 428
2 citations
Jump To
Cite 1 - [2001] 1 Qd R 428
Cite 2 - [2001] 1 Qd R 428
Western Australia v Collard [2015] WASCA 86
3 citations
Jump To
Cite 1 - [2015] WASCA 86
Cite 2 - [2015] WASCA 86
Cite 3 - [2015] WASCA 86
William Hollier & Anor v Australian Maritime Safety Authority & Ors (No 2) [1998] FCA 975
3 citations
Jump To
Cite 1 - [1998] FCA 975
Cite 2 - [1998] FCA 975
Cite 3 - [1998] FCA 975

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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