Smyth v State of Qld[2005] QSC 193

SUPREME COURT OF QUEENSLAND

[1] Wilson J:  On 5 July 2005 I dismissed an application for declarations as to the application of the Coal Mining Safety and Health Act 1999. The first respondent and the second and third respondents seek orders for payment of their costs by the applicant, but the applicant contends that only one set of costs should be allowed.

[2] The proceeding was commenced by the applicant’s filing an originating application on 22 June 2005, returnable on 30 June 2005. The first respondent (the State of Queensland) was the only respondent to the application.

[3] On Tuesday 28 June 2005 the Chief Inspector of Mines informed a legal officer in the employ of Xstrata Coal Australia Pty Ltd (the operator of the joint venture which conducts mining operations at Newlands) that a matter concerning the fatality on 8 July 2004 was to come before the Court on Thursday morning (30 June 2005). As a result the second and third respondents instructed solicitors, who made a number of inquiries and ultimately received copies of the court documents from the Crown Solicitor’s office late that afternoon. At about 6.00 pm that evening the solicitor handling the matter in the Crown Solicitor’s office informed the solicitors for the second and third respondents that the State of Queensland would be opposing the application, but that he was not sure whether they would be ready to do so by 30 June 2005. When asked whether the State would oppose an application by the second and third respondents to be joined as respondents to the application, he replied that he would have to obtain instructions.

[4] From the papers it appeared that the applicant would be arguing that the fatality did not occur on a public road. The first respondent and the second and third respondents filed material to show that it did indeed occur on a public road. On the morning of the hearing this argument was abandoned.

[5] At the commencement of the hearing on 30 June 2005, counsel for the second and third respondents applied for joinder pursuant to r 69(1)(b) of the Uniform Civil Procedure Rules. The principal application concerned the jurisdiction to investigate the accident, and ultimately to commence one or more prosecutions in relation to it. On the material, it appeared that the applicant’s attitude was that if the Chief Inspector refused to commence a prosecution, he would seek the permission of the Minister to do so himself (s 255(5)). The third respondent and possibly also the second respondent were clearly in his sights as persons to be prosecuted. Counsel for the second and third respondents made it clear that if his clients were not joined in the present application and if either or both of them were prosecuted, the issues canvassed on this application would again be live. Counsel for the applicant opposed the joinder; in the alternative he submitted that if joinder were allowed it should be on condition that the second and third respondents met their own costs. Counsel for the first respondent neither consented to nor opposed the joinder.

[6] In the upshot the second and third respondents were joined pursuant to r 69(1)(b)(ii) which provides –

“69 (1)  The court may at any stage of a proceeding order that –

      (a)   …

      (b) any of the following persons be included as a party –

             …

(ii) a person whose presence before the court would be desirable, just and convenient to enable the court to adjudicate effectually and completely on all matters in dispute connected with the proceeding.”

The joinder was unconditional.

[7] The relevant principles which guide the exercise of the Court’s discretion whether to award more than one set of costs in these circumstances were summarised by Woodward J in Statham v Shephard No 2 (1974) 23 FLR 244 at 246 – 247 as follows –

“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 provisoes.  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 [1941] VLR 207.)

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.”

[8] The principal application came to the attention of the second and third respondents in an informal way and on very short notice. It was perfectly reasonable for them to want to remain to arm’s length from the first respondent. While they were united in their opposition to the relief sought in the principal application (and at the hearing their submissions were substantially the same and mutually supportive), the applicant’s ultimate objective was to lay responsibility for the fatality at the feet of the second and third respondents, and had the applicant succeeded, they would have been facing possible prosecution by the Chief Inspector of Mines. In my view the second and third respondents did not act unreasonably in having separate representation.

[9] I order the applicant to pay the costs of the first respondent and the costs of the second and third respondents of and incidental to the application to be assessed on the standard basis.