Re Gentner v Callaghan (No 2)
[2014] QDC 233
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- Unreported Judgment
- Re Gentner v Callaghan (No 2)[2014] QDC 233
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Re Gentner v Callaghan (No 2)[2014] QDC 233
Re Gentner v Callaghan (No 2)[2014] QDC 233
DISTRICT COURT OF QUEENSLAND
CITATION: | Re Gentner v Callaghan & Ors (No 2) [2014] QDC 233 |
PARTIES: | NEALE KELSON GENTNER Applicant v CORONER B CALLAGHAN First Respondent and DRILLSURE PTY LTD Second Respondent and GOLDER ASSOCIATES PTY LTD Third Respondent and GARRY JAMES CHURCH Fourth Respondent and MICHAEL JAMES MILEY Fifth Respondent and ATTORNEY-GENERAL (Qld) Amicus Curiae |
FILE NO/S: | D203/2011 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | Maroochydore District Court |
DELIVERED ON: | 14 October 2014 (on the papers) |
DELIVERED AT: | Maroochydore |
HEARING DATE: | 30 May 2014 (last submissions received on 8 October 2014) |
JUDGE: | Long SC DCJ |
ORDER: | The Applicant is to pay each of the Respondent’s costs of the proceeding, as agreed or assessed on the standard basis, except:
|
CATCHWORDS: | CORONERS ACT – COSTS – Where application to set aside Coroner’s finding pursuant to s 50(5) Coroners Act was dismissed – Where multiple respondents seek an order that the applicant pay the costs of the proceeding – Public interest considerations – Whether allowance should be made pursuant to UCPR 691(5) for the nature and importance or the difficulty or urgency of the proceeding – Whether the extent to which proceedings served to clarify the law justified departure from the usual expectations as to costs – Where the Second, Third, Fourth and Fifth Respondents were not named in the originating application and were joined in order to make the proceeding competent – Whether or not the applicant should bear the burden of all the costs incurred by the respondents – Where considerations arise as to the commonality of issues and interests relating to the respondents – Where there are issues as to difference in success in respect of an interlocutory application and therefore the costs reserved on that application Coroners Act 2003, s 50 Uniform Civil Procedure Rules 1999 (“UCPR”) 62, 69, 367, 679, 680, 681, 691, 693, 698 Judicial Review Act 1991, s 49 Allianz Australia Insurance Ltd v Swainson [2011] QCA 179 Gentner v Callaghan & Ors [2014] QDC 123 Harrigan v Department of Health (1986) 72 ALR 293 Hurley v Clements & Ors (No 2) [2009] QCA 207 Kaycliff Pty Ltd v ABT (1989) 19 ALD 315 Latoudis v Casey (1990) 170 CLR 534 Levy v Victoria (1997) 189 CLR 579 Oshlack v Richmond River Council (1998) 193 CLR 72 R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 R v Hutchins [1959] SASR 189 Sequel Dull & Blast P/L v Whitsunday Crushers P/L (No 2) [2009] QCA 239 Statham v Shephard (No 2) (1974) 22 FLR 244 |
COUNSEL: | Mr S.T Courtney for the applicant No appearance by the First Respondent Mr M. McAuley for the Second Respondent Mr A. Lindeman for the Third Respondent Mr P.J Byrne solicitor for the Fourth and Fifth respondent Mr S.McLeod for the Attorney-General as amicus curiae |
SOLICITORS: | Butler McDermott Lawyers for the applicant No appearance by the First Respondent King Tobin Lawyers for the Second Respondent Dent Consulting and Legal for the Third Respondent Byrne Law for the Fourth and Fifth Respondent Crown Law for the Attorney-General as amicus curiae |
Introduction
- [2]On 30 May 2014, the originating application made by the Applicant on 16 September 2011 and seeking the setting aside the findings of a coroner who had conducted an inquest into the death of his stepson, was dismissed.
- [3]As a consequence each of the Respondents to the application[1] has sought an order that the Applicant pay their costs of the proceeding. The Attorney-General, who was granted leave to be heard on the application in an amicus curiae capacity, does not seek to recover any costs.
- [4]Although this proceeding was brought pursuant to s 50 of the Coroners Act 2003 and arose out of an inquest conducted under that Act and in respect of which, there is no power to award costs, in Hurley v Clements & Ors (No 2)[2], the Court of Appeal determined that the power to make the orders sought is to be found in r 680 and r 681 of the Uniform Civil Procedure Rules (“UCPR”).[3]
- [5]The application of UCPR 681 is of some significance, in that it states a general rule that:
“(1)Costs of a proceeding, including an application in a proceeding, are in the discretion of the court but follow the event, unless the court orders otherwise.”
- [6]Of further significance is the definition of what is included in “costs of the proceeding” in UCPR 679 and 693, which makes it clear that such costs “do not include the costs of an application in the proceeding, unless the court otherwise orders”. Although and in respect of this matter there was an interlocutory application which was determined on 17 August 2012, the costs of that interlocutory application were then reserved and the effect of UCPR 698 is that such costs also “follow the event, unless the court orders otherwise”.
- [7]Accordingly, each of the Second through Fifth Respondents[4] seek to recover the costs they have incurred in respect of these proceedings, including the reserved costs, on the basis of the event that the originating application was dismissed on 30 May 2014. Those costs are sought on the standard basis, except that the Third Respondent seeks an increase of up to 30% on the relevant scale of costs allowable on an assessment and which pursuant to UCPR 691(5), may be allowed “[if] the nature and importance, or difficulty or urgency, of a proceeding and the justice of the case justify it”.
Public Interest Considerations
- [8]In opposing these contentions and seeking an outcome whereby all parties are left to bear their own costs, the Applicant seeks to align the nature of these proceedings and a contention as to the public interest involved in them, with an analogy to the position that prevails under s 49 of the Judicial Review Act 1991.
- [9]An obvious problem with that approach is that, as s 49(4) of the Judicial Review Act makes clear, s 49 is a provision that makes express exception to the usual rules that apply under the UCPR and which are applicable here. That is, an exception is provided which has effect only in respect of matters dealt with under that Act.
- [10]However, the attempt by the Applicant to resort to considerations of public interest, as a factor relevant to the discretion to be exercised here, gains some support from the decision in Oshlack v Richmond River Council[5]. In that case, a majority of the High Court upheld an appeal and the decision of the primary Judge in taking into account the fact that the proceedings were brought in the public interest, in making no order as to costs. In that case, the unsuccessful applicant had brought proceedings under the Environmental Planning and Assessment Act 1979 (NSW), against a local council and a developer, in seeking relief in respect of consent granted by the council to a development application.
- [11]There the discretionary power under consideration was provided by s 69(2) of that Act, in the following terms:
“Subject to the rules and subject to any other Act:
- (a)costs are in the discretion of the court;
- (b)the court may determine by whom and to what extent costs are to be paid;
- (c)the court may order costs to be taxed or otherwise ascertained on a party and party basis or on any other basis.”[6]
It was concluded that there was no absolute rule to be applied to that discretionary power, that in the absence of disentitling conduct, a successful party was to be compensated for costs by an unsuccessful party.[7]
- [12]It can be noted that it was of some importance in that decision that the unsuccessful applicant had been authorised under s 123 of the Environmental Planning and Assessment Act 1979 (NSW), to bring proceedings seeking an order to remedy or restrain a breach of that Act, irrespective of whether any personal right of the applicant had been or might be infringed as a consequence of any such breach.
- [13]In the judgment of Gaudron and Gummow JJ, it was noted that the primary Judge had taken into account a number of considerations, including recognition of an ordinary rule of costs following the event of proceedings. Those considerations were described as follows:
“(i) The ‘traditional rule’ that, despite the general discretion as to costs being ‘absolute and unfettered’, costs should follow the event of the litigation ‘grew up in an era of private litigation’. There is a need to distinguish applications to enforce ‘public law obligations’ which arise under environmental laws lest the relaxation of standing by s 123 have little significance.
- (ii)The characterisation of proceedings as ‘public interest litigation’ with the ‘prime motivation’ being the upholding of ‘the public interest and the rule of law’ may be a factor which contributes to a finding of ‘special circumstances’ but is not, of itself, enough to constitute special circumstances warranting departure from the ‘usual rule’; something more is required.
- (iii)The appellant’s pursuit of the litigation was motivated by his desire to ensure obedience to environmental law and to preserve the habitat of the endangered koala on and around the site; he had nothing to gain from the litigation ‘other than the worthy motive of seeking to uphold environmental law and the preservation of endangered fauna’.
- (iv)In the present case, ‘a significant number of members of the public’ shared the stance of the appellant as to the development to take place on the site, the preservation of the natural features and flora of the site, and the impact on endangered fauna, especially the koala. In that sense there was a ‘public interest’ in the outcome of the litigation.
- (v)The basis of the challenge was arguable and had raised and resolved ‘significant issues’ as to the interpretation and future administration of statutory provisions relating to the protection of endangered fauna and relating to the ambit and future administration of the subject development consent; these issues had ‘implications’ for the Council, the developer and the public.
- (vi)It followed that there were ‘sufficient special circumstances to justify a departure from the ordinary rule as to costs’.”[8]
- [14]Further and after observing that the appellant’s attempt to establish “a category of ‘public interest litigation’”, was:
“a ‘nebulous concept’…. unless given, as the primary judge did in the present case, further content of a legally normative nature”;
and as having a tendency to distract from the legal issue at stake, which was described as:
“…. whether the subject matter, the scope and purpose of s69 are such as to enable the Court of Appeal to pronounce the reasons given by Stein J to be ‘definitively extraneous to any objects the legislature could have had in view’ in enacting s 69”;[9]
their Honours concluded:
“The primary judge reasoned from a starting point which favoured costs orders against the appellant as the unsuccessful party. However, he correctly drew a distinction earlier expressed as follows by Menzies J, with the concurrence of Kitto, Taylor and Windeyer JJ:[10]
‘Prohibitions and restrictions such as those under consideration are directed towards public health and comfort and the orderly arrangement of municipal areas and are imposed, not for the benefit of particular individuals, but for the benefit of the public or at least a section of the public, viz those living in the municipal area.’
Having characterised the nature of the litigation as concerned with public rather than private rights, Stein J stated that ‘something more’ than the categorisation of proceedings as public interest litigation was needed before a successful defendant should be denied costs.[11] Stein J then isolated the factors identified in pars (iii), (iv) and (v) of the summary given earlier in these reasons as sufficient special circumstances. In proceeding to exercise in this fashion the discretion conferred by s 69, Stein J did not take into account considerations which can be said to have been definitely extraneous to any objects the legislature could have had in view in enacting s 69 and in relation to the operation of s 69 upon proceedings instituted under s 123 of the EPA Act. The contrary is the case.”
- [15]Similarly, Kirby J concluded that “it is difficult to define with precision what is meant by ‘public interest’ litigation”. But he also observed that reference to authority identified that:
“…. a discrete approach has been taken to costs in circumstances where courts have concluded that a litigant has properly brought proceedings to advance a legitimate public interest, has contributed to the proper understanding of the law in question and has involved no private gain.”[12]
- [16]Further and in the context of also noting that the determination of what may be considered as relevant factors to an exercise of discretion, are to be found in the particular statutory expression of power, Kirby J otherwise observed, that in the absence of specific legislative provisions for special orders:[13]
“A particular approach to a party which has ventured upon litigation ostensibly in the public interest is not adopted to reward that party’s subjective motivation at the cost of another public or private person. As Cole JA pointed out in the Court of Appeal, litigation necessarily engenders cost. The purpose of the jurisdiction conferred to award costs is to permit the fair allocation of the costs which the parties have necessarily incurred. Courts, whilst sometimes taking the legitimate pursuit of public interest into account, have also emphasised, rightly in my view, that litigants espousing the public interest are not thereby granted an immunity from costs or a ‘free kick’ in litigation.” (Citations omitted)[14]
- [17]Further and in respect of a contention by the respondent council as to retreat from the compensatory principle endorsed in Latoudis v Casey,[15] Kirby J said:
“… Once it is appreciated that compensation to the successful party is the reason why the party will ordinarily have a reasonable expectation of recovering its proper costs, the limits of the principle are clear. It says nothing about exceptional or special circumstances which warrant a departure from the general rule. Such departures have quite often arisen in the past, as I have demonstrated. Public interest litigation is just one category into which may be grouped particular kinds of cases that will sometimes warrant departure from the general rule. The possibility of such departure cannot be denied, given the breadth of the statutory language in which the discretion is expressed.”[16]
- [18]Then and after dismissing, as not open, the respondent’s arguments as to mischaracterisation by the primary Judge, as to “the litigation, its public interest purpose, its arguability, the seriousness and the significance of the issues raised and the appellant’s objectives in pursuing it”, Kirby J finally concluded that:
“Within those opinions, it was unsurprising that his Honour should have classified these proceedings as having been brought in the public interest. More precisely, that public interest was of the kind which s 123 of the Environmental Planning and Assessment Act omitted and facilitated. As such, it was open to Stein J to conclude that a departure from the ordinary compensatory rule was appropriate in the circumstances.”[17]
- [19]In Hurley v Clements (No 2)[18], the Court of Appeal took into account as a consideration confirming a reluctance to determine where the costs of the proceedings by way of appeal to that Court should fall, on the basis of any determination as to who may have acted unreasonably in respect of the errors of the District Court, that “the proceedings concerned the consequences of the Inquest and its review marked them as having a substantial public interest aspect”. That observation was not there made by way of underpinning any order for costs by way of exception to the ordinary expectation and, as was explained in Oshlack, such a general conclusion would be an insufficient basis for doing so.
- [20]Here, the Applicant, in the first instance, seeks to appeal to “public interest” in a sense of the desirability of review of coronial findings, at the behest of the family of the deceased, in the consequence of a number of contended unsatisfactory features of the coronial process and which “caused or contributed to [the Applicant’s] ‘dissatisfaction’ with the process and the findings”.
- [21]Much of the written submissions of the parties are engaged in competing contentions about those features of the process and the findings which are sought to be categorised as unsatisfactory. Those submissions largely reflect the respective interests which are represented and for present purposes, it can again be noted, as it was in the substantive judgment, that there were unsatisfactory features of the processes leading to and engaged in this Inquest. Some of them were recognised by the coroner and all of them are touched upon in the earlier decision of this Court.[19] However, it is both unnecessary and unproductive to rehearse those competing contentions here.
- [22]Accordingly, the problem confronting the Applicant is that his “dissatisfaction”, in this respect, is largely in relation to and driven by his own personal interest in the findings of the coroner (albeit in the commendable memory of his deceased stepson), and it is the vindication of such personal interest which is allowed and sought by him under s 50 of the Coroners Act. In these circumstances there is a lack of foundation for the Applicant’s contention to be found in the further submission that an exception from the ordinary costs rule may be found because:
“… it was in the public interest to have an independent review given:
7.1The death under investigation was the result of a collision that occurred on a public road
The second and third respondents were contractors employed by a government department. A finding reviewed was the state in which they left a public road
7.2The fourth and fifth respondents were serving, relatively senior, police officers.
Between them they engaged in misleading conduct. On the face of it the statement of the fifth respondent’s wife was prepared on 5 May 2006, taken by the fourth respondent and was signed under the Justices Act at Coolum. The true situation was that statement was taken by the fifth respondent’s husband, sometime after 1 November 2006 and not signed at Coolum.”
- [23]In the result, the circumstances of this case provide an insufficient basis for any departure from the application of the ordinary rule that the applicant pay the costs of the respondents. However, there remain issues as to the extent of that liability.
Application of UCPR 691(5)?
- [24]There is also a lack of foundation to the Third Respondent’s claim for an allowance of “an increase of not more than 30% of the Australian lawyer’s costs allowable on an assessment under the relevant scale of costs”. Such an allowance may be made “[i]f the nature and importance or the difficulty or urgency, of a proceeding and the justice of the case justify it”. No such justification is established here.
- [25]Whilst it may be concluded that, as demonstrated by the substantive judgement, this was a more than ordinarily difficult case and that the difficulties of having the Applicant come to grips with the limitations of the review allowed under s 50 of the Coroners Act and to identify the materials to be relied upon in that regard, did serve to complicate the nature of these proceedings, up until 17 August 2012 (at the latest), there is no convincing contention advanced in the identification of any particular importance or urgency in the proceedings. However, those difficulties were being managed by the Court and by the directions hearings that were conducted and in the context that these proceedings are to enable correction of coronial findings, only upon stipulated bases in s 50(5) of the Coroners Act and not by way of any general right of review of coronial findings.
- [26]As will be later examined, that process became further complicated by the seizure of opportunity by the Respondents, to have the Applicant’s attempt to rely on s 50(5)(a) of the Coroners Act, prevented by a premature determination of the interpretation of that sub-section and particularly what could amount to “new evidence”. That interlocutory attack on the Applicant’s case did not succeed and by no later than 17 August 2012, the case to be presented by the Applicant had been identified.
- [27]From there it can be observed that the competing submissions of the parties and the length of the hearing of the application, was substantially because of concern as to the differences that divided them in the Inquest and remained fixed in their own perceptions of the merits of their respective contentions at the Inquest, rather than in identification of particular features or attributes of the proceedings in this Court and which supported their respective positions as to the limited scope of the review of the findings made in relation to those contentions. Accordingly and to the extent that this approach added to any difficulty of the case, it was not particularly because of inherent difficulty but rather, a level of unnecessary lack of clarity in the approach of the parties and in this regard that applies as much to the Third Respondent (who took the role of the main opponent to the Applicant’s contentions). It must also be observed that there is a tendency in the written submissions on this issue, on both sides, to engage in the largely irrelevant and unrewarding examination of which side may have caused or contributed to the loss of sight of the inquisitorial role of the Inquest[20]. Such an enquiry would be largely irrelevant because any concern as to the application of UCPR 691(5) must be with the particular features of the proceeding in this Court, rather than of the Inquest.
Some Other Considerations
- [28]It is true, as the Applicant further contends, that the Inquest conducted in the Coroners Court is a “no costs jurisdiction” and that the quantum of the costs confronting the Applicant is likely to be significant. But and on the other hand, the proceedings engaged under s 50 of the Coroners Act, in this Court, do have potential costs implications and necessarily involve the incurrence of legal costs by the parties.
- [29]Before dealing with some further points that are raised by the Applicant, it is convenient to set out some of the chronology or history of this proceeding, before it was finally heard.
- [30]The proceeding was commenced by the filing of an originating application on 16 September 2011. That application named only the First Respondent as the respondent to it. On the first return date, on 14 October 2011 and without any objection by the Applicant:
- (a)consistently with authority, the First Respondent was given leave to withdraw from the proceedings and to abide the order of the Court, save as to costs, should that arise;[21]
- (b)the Attorney-General was given leave to appear as amicus curiae; and
- (c)apart from directions in respect of filing of material to be relied upon, it was directed that the application and the material to be relied upon be served on all other parties to the Inquest, by 4 November 2011.
- [31]At that time, the matter was adjourned for a further directions hearing on 18 November 2011 and on that occasion and by the consent of all of the parties then before the Court, the Second, Third, Fourth and Fifth Respondents, became parties to the application and further directions were made as to the filing and service of further materials, in order to identify the issues to be raised under s 50(5) of the Coroners Act and to otherwise determine the scope and duration of any hearing of the application. That was to include the provision of statements of contentions and any materials to be relied on by any respondent. Those orders were to be complied with by 3 February 2012. The costs of that hearing were reserved and it was noted that a further directions hearing was to be arranged.
- [32]From there, the proceedings became complicated. In the context of a potentially wide-ranging review sought by the Applicant and the need to relate the appeal to the limited grounds available in s 50(5) of the Coroners Act and to identify the precise evidence to be relied upon as new evidence (pursuant to s 50(5)(a)), further directions were subsequently sought, primarily at the instigation of the Respondents.
- [33]By the time this matter came back before the Court for review and further directions on 31 May 2012, it had been identified that the Applicant was seeking to rely on additional materials which had not been identified and supplied to the parties in accordance with the directions made by the Court on 18 November 2011. Accordingly and in the context of the adversarial environment in which both the Inquest and these proceedings had been conducted and with the Third Respondent at the forefront and with the agreement of the other Respondents, various points were sought to be taken. Relevantly, this included identification of a need for the Applicant, in order to rely on those additional materials not provided in accordance with the earlier directions of the Court, to obtain an indulgence in the form of the leave of the Court under UCPR 367(4). Accordingly, further directions were made, on 31 May 2012 and also on the papers on 18 July 2012, in relation to the further review of the matter and hearing of such an interlocutory application on 17 August 2012. Otherwise the hearing of the appeal had been listed for 5 and 6 November 2012.
- [34]Up until this stage, the concern which had been managed by the Court was in the clarification of the issues to be agitated on the appeal and particularly with the identification of any “new evidence” to be relied upon. However, the course of events just described, provided the opportunity for the Respondents to re-engage their desire to contend that the “new evidence” relied upon by the Applicant could not amount to such and should therefore be excluded from consideration on any hearing of the application. It had previously been determined that such contentions would be entertained when the appeal was heard and in the context of all of the arguments to be considered. In the result and as reflected in orders or directions made on 17 August 2012[22], the Applicant was entirely successful in obtaining the leave that was required and in resisting any interlocutory determination as to his ability to rely upon “new evidence” pursuant to s 50(5)(a) of the Coroners Act.
- [35]It is in this context then that the Applicant makes the following submission:-
“The Application required the consideration of a novel point of law.
- 11.The Application required the extensive consideration of the term ‘new evidence’ as it is used in Section 50(5)(a) of the Coroners Act 2003.”
- [36]That submission draws particular attention to the issue determined in the substantive judgment, as to the meaning or statutory interpretation of s 50(5)(a) of the Coroners Act and particularly the concept of “new evidence [that] casts doubt on the finding”.[23] It is correct to describe this as “a novel point of law” in the sense that this issue had to be determined without the benefit of the assistance of any prior consideration by another Court and that, and as the earlier reasons demonstrate, the issue was not without some complication.
- [37]As was noted in Oshlack, authorities may be found where the extent to which proceedings serve to clarify the law, has been regarded as a factor relevant to an exercise of discretion, in departure from the usual expectation as to costs. Here, and whilst this application did serve to provide clarification of an approach to s 50(5)(a) and the Applicant ultimately succeeded in having most of the evidence he proffered in this regard considered under that subsection, it is otherwise difficult to separate these considerations from the overwhelming lack of success which the Applicant achieved in his application to have the coronial findings set aside.
- [38]However, it seems to me that, in this context, the question that is begged, is as to the extent to which there was adversarial opposition to the attempts of the Applicant to rely upon this “new evidence” and upon a basis that was inconsistent with the success achieved by the Applicant in having that evidence largely so considered and the extent to which considerable costs were incurred in and incidentally to the interlocutory determination of that resistance on 17 August 2012. That question arises in the context that the Applicant required, in respect of some of the evidence he sought to rely on, the Court’s indulgence because of a failure to entirely comply with earlier directions of the Court, but nevertheless he was entirely successful in the disputation of that entitlement.
- [39]It seems to me that in the proper exercise of discretion in this case and whilst it would not be appropriate for the Applicant to recoup, in these circumstances, his costs of success on the interlocutory issues, neither would it be appropriate to allow any of the Respondents to do so. Costs were reserved on 17 August 2012 and whilst I am conscious that the Applicant makes no express or separate request or submission in relation to those reserved costs, the question necessarily arises in the exercise of discretion by this court and in accordance with UCPR 698, it may be appropriate to otherwise order, in relation to these reserved costs following the event of the proceedings in an overall sense.
- [40]Accordingly, the orders to be made as to the recovery costs by the Respondents may be with the exception of those costs of and incidental to the hearing conducted on 17 August 2012, including those costs relating to the directions made on the papers on 18 July 2012. The later costs were only incurred incidentally to and for the purpose of that interlocutory hearing.
- [41]A further submission made by the Applicant and in support of his contention that there should be no order that he pay any of the costs of the Respondents, is to point out that the Second, Third, Fourth and Fifth Respondents were not named in his originating application, as such and “all joined at their own request”. He then expressly relies on the following statement in Kaycliff Pty Ltd v ABT:[24]
“… where proceedings under the Judicial Review Act are competent in the sense that all persons against whom relief is sought are made respondents, the general rule should be that an additional respondent who is joined at his own request ought not to receive his costs if the application fails.”
- [42]However and as the chronology or history that has been summarised above notes, the joinder of the Respondents here occurred by consent order made on 18 November 2011. Moreover, it is clear that such joinder occurred in order to make this proceeding competent, in the relevant sense. Each of the Second, Third, Fourth and Fifth Respondents had, like the Applicant, been granted leave to appear at the Inquest which was the subject of this application[25]. Accordingly they had a common interest in resisting the application for the setting aside of any finding of the coroner and the prospect of an order under s 50(7) for any reopening of the Inquest and at which they may be exposed to further cost in respect of enquiry into their conduct or, in the case of the Second and Third Respondents, of their employees. Moreover, each sought to be heard to protect that common but separately held interest.
- [43]As has been noted, by the time these Respondents were added, the only named Respondent to the originating application had, without objection, been granted the entirely predictable leave to withdraw from the proceedings, given her role as the decision maker in the application and the Attorney-General was on the record, but in the limited capacity of an amicus curie.[26] Significantly and as has been noted, the Attorney-General does not seek the recovery of any costs.
- [44]Accordingly, it was entirely appropriate that these Respondents be included as parties pursuant to UCPR 62 or UCPR 69, in the sense that their presence before the court was, if not “necessary”, “desirable just and convenient to enable the court to adjudicate effectually and completely on all matters in dispute in the proceeding”.[27]
- [45]In Kaycliff, the unsuccessful applicant was ordered to pay the costs of the second respondent and an explanation for that may be seen by expanding upon the passage upon which the Applicant places reliance:
“In the absence of special circumstances, I think that where proceedings under the Judicial Review Act are competent in the sense that all persons against whom relief is sought are made respondents, the general rule should be that an additional respondent who is joined at his own request ought not to receive his costs if the application fails.
But the circumstances of the present case are special. The role which the Tribunal properly adopted left the court in the position where there was no real opponent of the applicants’ case. I do not suggest it was improper for the applicants not to have joined the second respondent in the proceedings when they were commenced. Nevertheless, it must have been apparent to them that there was a real likelihood that, by reason of what was said in Hardiman, the Tribunal would not be a real opponent in the litigation and that, consequently, the likelihood was that the second respondent would seek to be joined in the proceedings.”[28]
- [46]As I have noted, a similar likelihood was a feature of the way that the Applicant sought to commence these proceedings and if the inclusion of these Respondents was not demanded by UCPR 62(1), it occurred, as has been noted, appropriately and in accordance with the relevant rules.
- [47]
“In the proceedings before the Administrative Appeals Tribunal orders were made under s 30 of the Administrative Appeals Tribunal Act joining as parties to the proceedings the Australian Medical Association and some other persons and bodies. The parties so joined were joined at their own request. They were all represented before the court by counsel and in substance adopted the argument advanced on behalf of the first respondent.
Subject to any relevant statutory provision, it is generally desirable that persons whose interest may be affected by the outcome of proceedings before the Tribunal have the opportunity of participating in those proceedings. The general rule is that, before the Tribunal, all parties bear their own costs. There is, therefore, little danger that a decision to allow the joinder of additional parties will result in the imposition on another party of an undue burden of costs.
By contrast, however, in proceedings in the court under ss 44 and 45 of the Administrative Appeals Tribunal Act it is usual to order that the unsuccessful party pay the costs of the successful party. Care needs to be exercised to ensure that a combination of a liberal attitude as to joinder before the Tribunal and the application in this court of the usual costs rule does not result in unfairness to the party who is unsuccessful. As the matter of costs is discretionary, no fixed rule can, or should, be propounded, but relevant matters for consideration are the nature of the particular proceedings and the position taken by the various parties before the court. The present proceeding is a case stated, for its own guidance, by the Tribunal.
In relation to the question raised by the case, the interest of the parties joined was identical to that of the respondent Department. Under these circumstances a question arises as to whether it would be right to visit upon the unsuccessful applicant the costs of the parties joined.”
- [48]Although the submissions of the Applicant are directed entirely at considerations seeking avoidance of liability for any of the Respondents’ costs, the situation referred to in Harrigan has some analogy to the present and in the exercise of this Court’s discretion, it is as much necessary to consider whether or not the Applicant should bear the burden of all the costs incurred by the Respondents.
- [49]It is important to note at the outset of the consideration of any such question, that the compensatory principle upon which costs are ordinarily ordered is an important consideration. Even though in dissent as to the outcome in Oshlack, reference is often made to the following passage in the judgment of McHugh J, in explanation of the usual significance of that principle:
“[67] The expression the ‘usual order as to costs’ embodies the important principle that, subject to certain limited exceptions, a successful party in litigation is entitled to an award of costs in its favour. The principle is granted in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant. Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party [Latoudis (1990) 170 CLR 534 at 543, per Mason CJ: at 562-563, per Toohey J; at 566-567, per McHugh J; Cachia v Hanes (1994) 179 CLR 403 at 410, per Mason CJ, Brennan, Deane, Dawson and McHugh JJ]. If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation.
[68] 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.”[31]
- [50]However, the position discussed in Harrigan is consistent with the majority approach in Oshlack, which allowed for departure from the usual rule, where the circumstances of a case warrant that.
- [51]In Dal Pont’s Law of Costs (Second Edition)[32], there is discussion (with reference to many instances exemplifying particular application of the relevant principles) of the situation in respect of multiple parties with common interests. That discussion demonstrates two things. First and whilst a party may elect in protection of its own interests, the right of separate representation, it by no means necessarily follows, even if that is a reasonable election, that if successful, any or all of the costs so incurred will be recoverable from the unsuccessful party. Secondly, there are many instances where there has been a limitation placed on the recovery of all incurred costs in circumstances where, as between defendants or respondents, there was both a commonality of issue and interest involved in the proceedings. In the latter respect, it may be necessary that there was no potentiality of conflict of interest between those parties.[33] For example, in Statham v Shephard (No 2), Woodward J concluded:
“The principle which I deduce from these authorities, and which I believe I should follow in spite of the two cases earlier cited, is that the court will not normally allow two sets of costs to defendants where there is no possible conflict of interest between them in the presentation of their cases. I would add to this basic proposition three provisos. In the first place, if a conflict of interest appears possible but unlikely, the defendants should make any necessary inquiries from the plaintiff as to the way in which his case is to be put if this would resolve the possibility of conflict between defendants. (See In re Lyell (10).)
Secondly, there could be circumstances in which, although the defendants were united in their opposition to the plaintiff, their relationship to each other might be such that they would be acting reasonably in remaining at arm’s length during the general course of litigation.
Thirdly, even if defendants are acting reasonably in maintaining separate representation for some time or for some purposes, they may still be deprived of part of their costs if they act unreasonably by duplicating costs on any particular matter or at any particular time.”[34]
- [52]In this case and in order to pursue his interest in securing a re-opening of the Inquest, the Applicant confronted the prospect, if not necessity, that the many persons, who had been granted leave to appear at the Inquest, would be respondents to his application. It may be readily accepted that at the Inquest, each of these parties would be separately represented because of separation of interest in respect of different issues that may have been the subject of inquiry. However this application was not, despite the early attempts of the Applicant to make it so, a re-hearing of the Inquest and as I have already noted, the singular common interest of the Respondents in this proceeding, was in resisting an order for re-opening of the Inquest, particularly so as to avoid the incurrence of further unrecoverable cost and the inconvenience of such a re-opening and at which the conduct of a particular Respondent may again be subject of investigation.
- [53]At least until some shape to these proceedings was achieved (by no later than the interlocutory hearing on 17 August 2012, with reasons published on 24 August 2012), it has to be recognised that the Applicant’s approach was wide ranging and made the assessment of the precise issues to be raised in the proceedings more difficult to discern. Accordingly, it is difficult to conclude that as between the Second and Third Respondents, on the one hand and the Fourth and Fifth Respondents, on the other, there was no or no real prospect of any conflict of interest.
- [54]Further and as can be gleaned from the original reasons for the substantive decision and even the Applicant’s submissions on this costs issue[35] and notwithstanding some obvious difficulty of relating such concerns and particularly those relating to the Fifth Respondent back to the critical issue, as to the absence of a finding by the Coroner as to there being debris left on the roadway as a consequence of the drilling operations conducted by the Second and Third Respondents and which contributed to the death, concerns about the conduct of both the Fourth and Fifth Respondents and the handling of these issues by the Coroner, remained as matters which were the subject of agitation on these proceedings. In these circumstances, it is not possible to conclude that there was no possibility of a conflict of interest between these Respondents and the Second and Third Respondents and as has been noted, each of the Fourth and Fifth Respondents shared the common interest in resisting a re-opening of the Inquest. In contrast to the position of the Second and Third Respondents, they were jointly represented and by a solicitor only. It is therefore, in these circumstances, reasonable to allow the recovery of costs sought by these Respondents.
- [55]Otherwise, it can be noted that the approach of the Respondents was an obviously agreed approach, whereby the main burden of response was assumed by the Third Respondent’s representatives, with the other Respondent’s representatives merely seeking to supplement those submissions and particularly in the case of the solicitor for the Fourth and Fifth Respondents, to bring some particular focus to the matters raised in respect of the Coroner’s treatment of their conduct.
- [56]This approach was particularly evident in respect of the Second Respondent. Despite having engaged separate solicitors and the briefing of separate counsel, in the course of the oral hearings, it was usually allowed that the Second Respondent addressed after counsel for the Third Respondent and as I have noted, that typically occurred by way of supplementing the submissions of the Third Respondent. The Second and Third Respondent had through their joint vocational engagement in the drilling activities[36] and which were critical to the central consideration which underlay the issues in this proceeding, an obvious commonality of interest in all the issues raised in these proceedings. Further, it is not apparent as to how there could have been any conflict of those interests in these proceedings.
- [57]I am therefore inclined to the view that it is not appropriate to allow the recovery of two full sets of costs for these Respondents and that there should be an apportionment of what each may recover. In the circumstances as outlined and where it is likely to be effectively a duplication of costs, an appropriate exercise of discretion may be to allow 50% of each of the Second and Third Respondents’ costs.
- [58]Whilst this remains a matter of exercise of this Court’s discretion and each of these Respondents has already had an opportunity to make submissions as to costs[37], it must be recognised that the outcome which would ensue from the reasoning expressed most recently above, has never been expressly identified in the submissions of the Applicant or in the hearing of this application. That is, in part, due to the decision to minimize costs, by hearing this application, after 30 May 2014, on the papers and accordingly, each of the Second and Third Respondents, will be allowed the opportunity to file and serve a further written submission, in the light of what has been foreshadowed above, on or before 1 October 2014 and the Applicant, a reply on or before 8 October 2014 and before any orders as to the costs of this proceeding, are made.
- [59]However and for the sake of clarity and subject to any further submissions, I will indicate that the implementation of the reasons expressed above would be properly effected by an order that:
the Applicant is to pay each of the Respondent’s costs of the proceeding, as agreed or assessed on the standard basis, except:
- (a)the costs of and incidental to the interlocutory application heard on 17 August 2012 (including those costs relating to the directions made, on the papers, on 18 July 2012); and
- (b)that in the case of each of the Second and Third Respondents, that be as to 50% only, of the costs of the proceeding of each of them.
Any such further submissions that may be submitted, are to be limited to issues relevant to the indicated exceptions to that general order.
Postscript
- [60]Pursuant to the directions set out in the immediately preceding paragraph and consequently to the publication, to the parties on 18 September 2014, of the reasons set out above, further submissions have been received from the Third Respondent (on 1 October 2014) and the Applicant (on 8 October 2014).
- [61]Having regard to those further submissions, it can be noted that no contention was raised in respect of the foreshadowed exception to the general proposed order as to costs, at paragraph [59](a).
- [62]Further I am not persuaded by any of the further submissions of the Third Respondent to depart from the foreshadowed exception in relation to allowing any more than one set of costs for the benefit of the Second and Third Respondents.
- [63]The reasons for that remain essentially as expressed above[38]. It is to be noted that such an order is made as an exception to the usual guiding principle of indemnification of a successful party and although the distinction may be a fine one, not on the basis of any determination that the Second and third Respondents should have been jointly represented in these proceedings. Rather, the conclusion is that, in the circumstances and having chosen to be separately represented, it is not appropriate that the entire cost of that decision by the Respondents should be borne by the Applicant.
- [64]However and particularly where there is no countervailing submission proffered by the Second Respondent and notwithstanding the prospect of their commercial relationship logically providing some basis for the prospect of adjustment by agreement and irrespective of any apportionment by this Court, I am persuaded to the view that the order of the Court should reflect that the brunt of the response to the application was borne by the Third Respondent and that this should be reflected in an apportionment that is greater than 50%.
- [65]But in the light of the particular reliance of the Third Respondent on the extent of that work and the absence of any particular criticism of the necessity for, or value of any particular aspect of it, to the outcome of the proceedings, I should say that notwithstanding the context of the observations made in the original substantive decision in this matter and as to the difficulty in the approach of the parties, in completely coming to grips with the limited basis upon which the application could be determined, it is unnecessary to descend into any consideration of the complete utility of all the materials produced to the Court by the Third Respondent. That is particularly because the wider context is that the genesis of this problem lay with the Applicant.
- [66]However, I am satisfied that in the circumstances where both the Second and Third Respondents have participated in these proceedings with solicitors instructing counsel, with an obvious benefit to the Third Respondent of the advantage of those other legal representatives watching over and supplementing the protection of effectively the same and very closely aligned interests, the submission that the proportion should be as high as 80% and that of the Second Respondent as low as 20%, should not be accepted.
- [67]In all of the circumstances an appropriate assessment is to allow 65% of the Third Respondent’s costs and 35% of those of the Second Respondent.
- [68]Accordingly, it is ordered that the Applicant is to pay each of the Respondent’s costs of the proceeding, as agreed or assessed on the standard basis, except:
- (a)the costs of and incidental to the interlocutory application heard on 17 August 2012 (including those costs relating to the directions made, on the papers, on 18 July 2012); and
- (b)in the case of the Second Respondent, that be as to 35% only, of those costs of the proceeding; and
- (c)in the case of the Third Respondent, that be as to 65% only, of those costs of the proceeding.
Footnotes
[1] Save for the first respondent, who from an early stage has played no active role in these proceedings.
[2] [2009] QCA 207 at [11].
[3] Accordingly, there is no need to further consider the potential application of s 15 of the Civil Proceedings Act 2011, which came into effect on 1 September 2012 and therefore after the commencement of this application but before it was finally heard and determined.
[4] It may be noted that the Fourth and Fifth Respondent had the same legal representation in respect of this proceeding.
[5] (1998) 193 CLR 72
[6] It was noted that there were no rules or other legislative provisions that were relevant.
[7] (1998) 193 CLR 72 at [40] and [134].
[8] Ibid at [20].
[9] Ibid at [30] – [31].
[10]Cooney v Ku-ring-gai Corporation (1963) 114 CLR 582 at 605.
[11]Oshlack (1994) 82 LGERA 236 at 244.
[12] Ibid at [136].
[13] An example might be s 49 of the Judicial Review Act 1991.
[14] (1998) 193 CLR 72 at [134], Point 6
[15] (1990) 170 CLR 534
[16] (1998) 193 CLR 72 at [143]
[17] Ibid at [144]
[18] [2009] QCA 207 at [7]
[19]Gentner v Callaghan & Ors [2014] QDC 123
[20] And which was commented on in the substantive judgment: Gentner v Callaghan & Ors [2014] QDC 123 at [52]
[21] See R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 at 35-36 and cf Oshlack v Richmond River Council (1998) 193 CLR 72 at [12].
[22] With written reasons subsequently published on 24/8/12.
[23] See Gentner v Callaghan & Ors [2014] QDC 123.
[24] (1989) 19 ALD 315 at 317, per Morling J
[25] The only other person granted such leave was the Commissioner of Police but he sought to play no role in these proceedings, except in respect of responding to subpoena directed to him in the early stages when the matter was subject of the directions hearings.
[26] See Levy v Victoria (1997) 189 CLR 579, particularly at 604-5
[27] See UCPR 62(2) and UCPR 69(1)(b)
[28] (1989) 19 ALD 315 at 317-8
[29] In para [44]
[30] (1986) 72 ALR 293, at 296-7, per Fisher and Jackson JJ, with whom, Wilcox J agreed.
[31] E.g. see: Sequel Dull & Blast P/L v Whitsunday Crushers P/L (No 2) [2009] QCA 239 at [3]-[4] and Allianz Australia Insurance Ltd v Swainson [2011] QCA 179
[32] At [11.49] – [11.55]
[33] See Dal Pont Law of Costs (Second Edition) at [11.53]
[34] (1974) 22 FLR 244 at 246-7 and see also R v Hutchins [1959] SASR 189, where an apportionment of a full set of costs occurred.
[35] See Paragraph [21] above
[36] As explained in the statement of Peter Geoffrey Hooper (see Ex. BW3 to the affidavit of Brigita White, at Vol 2, p 367 and ff), the Third Respondent, “a global ground engineering and environmental services company”, had been engaged to conduct some geotechnical assessment of the locality for potential road regrading and widening and engaged the Second Respondent, by sub-contract, to perform the actual drilling work, under his supervision.
[37] It can be noted that despite being given the same opportunity, as the other Respondents, to do so and although orally advancing its contention that its costs should follow its success on the proceedings and being stridently critical of any suggestion that this would not be the outcome, the Second Respondent has not made any written response to the written contentions of the Applicant.
[38] Particularly at [46]-[55].