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Lonergan v Stilgoe (No 2) QSC 146
SUPREME COURT OF QUEENSLAND
Lonergan v Stilgoe & Ors (No 2)  QSC 146
PATRICK JOSEPH LONERGAN AND PRUE MADELINE LONERGAN
PETA G STILGOE, OAM, MEMBER OF THE LAND COURT OF QUEENSLAND
GERALD DAVID GEORGE SKILTON
DIRECTOR GENERAL, DEPARTMENT OF ENVIRONMENT AND SCIENCE
BS 7386 of 2019
Application for a costs order
Supreme Court at Brisbane
29 May 2020
On the papers
The applicants are to pay the third respondent’s costs of and incidental to the application on the standard basis.
ADMINISTRATIVE LAW – JUDICIAL REVIEW – PROCEDURE AND EVIDENCE – COSTS – where an application for judicial review was dismissed – where the applicants seek an order under s 49(1)(e) of the Judicial Review Act 1991 (Qld) that they bear only their own costs of the application – whether s 49(1)(e) authorises an order concerning costs incurred before a costs application is made under s 49 – whether the application involved matters of public interest – whether the discretion to make a costs order under s 49(1)(e) should be exercised in favour of the applicants
Judicial Review Act 1991 (Qld), s 49
Anghel v Minister for Transport (No 2)  2 Qd R 454;  QCA 232, cited
Attorney-General (Qld) v Barnes  QCA 152, cited
Burragubba v Minister for Natural Resources and Mines (No 2)  QSC 265, cited
Graham v Legal Services Commissioner  QCA 6, cited
Oshlack v Richmond River Council (1998) 193 CLR 72;  HCA 11, cited
Sharples v Council of the Queensland Law Society Incorporated  QSC 392, cited
Whitsunday Residents Against Dumping Ltd v Chief Executive, Department of Environment and Heritage Protection (No 2)  QSC 159, cited
M T Hickey for the third respondent
Marland Law for the applicant
Crown Solicitor for the third respondent
- On 23 April 2020 I dismissed the further amended application for a statutory order of review. I made directions as to any submissions as to costs.
- The only issue as to costs relates to costs as between the applicant and the third respondent. The third respondent seeks an order that the applicant pay the third respondent’s costs of and incidental to the application. The applicants seek an order pursuant to s 49(1)(e) of the Judicial Review Act 1991 (Qld) (“JRA”) that they bear only their own costs of the proceedings.
- Section 49(1)(e) permits a costs application by a party who has made a review application to seek an order that the party is to bear only that party’s own costs of the proceeding, regardless of the outcome of the proceeding.
- Section 49(1)(e) seemingly differs from s 49(1)(d). Section 49(1)(d) is prospective only and does not apply to a situation such as the present where the application for costs was made only after the substantive decision was handed down. However, s 49(1)(e) has been taken to authorise an order about costs incurred before the making of a “costs application” under s 49(1). This is despite:
- (a)the presence of prospective language in some of the considerations to which the court is to have regard in s 49(2);
- (b)contrary indications in s 49(3); and
- (c)the prospective tone of the words “regardless of the outcome of the proceeding” in s 49(1)(e).
- Section 49(2) provides:
“In considering the costs application, the court is to have regard to –
(a) the financial resources of –
(i) the relevant applicant; or
(ii) any person associated with the relevant applicant who has an interest in the outcome of the proceeding; and
(b) whether the proceeding involves an issue that affects, or may affect, the public interest, in addition to any personal right or interest of the relevant applicant; and
(c) if the relevant applicant is a person mentioned in subsection (1)(a) – whether the proceeding discloses a reasonable basis for the review application; and
(d) if the relevant applicant is a person mentioned in subsection (1)(b) or (c) – whether the case in the review application of the relevant applicant can be supported on a reasonable basis.”
- The relevant law has been conveniently summarised by Bond J in Burragubba. As his Honour notes, although the s 49(2) considerations are mandatory, they are not to be regarded as exhaustive. A relevant consideration in a case such as the present is the manner of disposition of the review application and the reasons for it.
- I turn to the mandatory considerations.
- No evidence was placed before me about the financial resources of the applicants, and reliance is not placed upon the consideration in s 49(2)(a) in the applicant’s submissions.
- As to s 49(2)(b), the applicants submit that their application for review concerned matters that were directly relevant to their own business interests and also to the public interest. They say that the matters include the proper administration of mining lease applications, and that the application also dealt with matters of national environmental significance, most notably koala habitat protection.
- Almost any application for judicial review will involve a public interest element and usually there must be some broader public interest than is usual in order to justify a special costs order.
- The applicants submit that it is in the public interest that the function of the third respondent be open to judicial review “to ensure probity and proper administration of the laws of the State”. They also submit that if the third respondent is awarded its costs it will set a precedent which would deny the public the opportunity to have matters of importance subject to appropriate review for fear of financial repercussions against a well-resourced respondent.
- I am not persuaded that these matters place this application for judicial review as one which affects the public interest to any greater extent than most applications for judicial review which, in one way or another, scrutinise governmental action and seek to ensure the proper administration of the laws of the State.
- Moreover, this was not “public interest litigation” as that term is sometimes used. Principally, it was litigation in defence of the applicants’ property and business interests because they objected to the proposed granting of a mining lease over their property. Their objections were subject to independent consideration by the Land Court. Not satisfied with the Land Court’s decision, they pursued an application for judicial review in proceedings in the Supreme Court because the relevant legislation does not allow for an appeal process. However, none of this means that the litigation was in the nature of “public interest” litigation.
- The interpretation of the relevant legislation may affect the public interest. However, that may be said in any case involving an issue of statutory interpretation.
- The applicants’ costs submissions note that the judgment involved “the complex analysis of several High Court decisions”. However, the legal complexity of a matter is not a mandatory consideration in s 49(2). The complexity of legal analysis is not a sufficient justification to insulate an unsuccessful party from a costs order, and to, in effect, require the successful party to meet its costs of addressing a complex matter.
- As to other considerations which are not mandated by s 49(2), the applicants note that the third respondent is funded by the State of Queensland and that whilst the application was ultimately unsuccessful, it dealt with matters relevant to the proper administration of mining lease application documentation and that the decision has “clarified the proper approach or conduct of the Department in the administration of mining lease applications”. On that basis, the applicants submit that it is in the interests of justice and the fair administration of the laws of Queensland that each party should bear their own costs of the proceedings.
- The third respondent submits that the applicants were wholly unsuccessful and that the Court’s discretion as to costs should follow the event. However, that submission was based upon the proposition that s 49(2) does not apply and that, as a consequence, under s 49(4) the rules of court apply to the awarding of costs.
- In my view, I am seized of an application under s 49(1) and have to consider whether an order should be made under s 49(1)(e) that the applicants are to bear only their own costs. Still, in that context, and in dealing with a costs application made after the substantive matter had been determined, a relevant consideration is that the applicants were unsuccessful.
- It is not said that the applicants’ judicial review application was without a reasonable basis.
- A matter which the third respondent submits favours not making the order sought by the applicants is that the third respondent was required to take an active interest in the proceeding to ensure the Court had the assistance of a proper contradictor.
- The fact that the third respondent is publicly funded is not a good reason as to why it should not have a costs order made in its favour. The taxpayers of Queensland should not be expected to fund the successful defence of litigation.
- There is an important public policy why unsuccessful parties in litigation usually should be required to compensate the successful parties in respect of their costs. McHugh J in Oshlack v Richmond River Council stated:
“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.”
That consideration has force in a case such as this in which the unsuccessful party initiated and prosecuted litigation principally in protection of private interests, rather than to advance the public interest.
- Overall, in considering both the mandatory considerations in s 49(2) and other relevant considerations, I decline to exercise my discretion to make an order under s 49(1)(e) in favour of the applicants.
- As a result, and by virtue of s 49(4) of the JRA, the rules of court apply to the awarding of costs. No conduct disentitles the third respondent from being compensated in respect of the costs incurred as a proper party. The third respondent’s submissions assisted the resolution of issues of statutory interpretation. The matters raised by the applicants in their application for an order pursuant to s 49(1)(e) do not displace the usual order as to costs. I exercise my discretion to order the applicants to pay the third respondent’s costs of and incidental to the application on the standard basis.
 Lonergan v Stilgoe & Ors  QSC 86.
 Attorney-General (Qld) v Barnes  QCA 152 at .
 Anghel v Minister for Transport (No 2)  2 Qd R 454 at 455, 461-462; Foster v Shaddock  QCA 163; Burragubba v Minister for Natural Resources and Mines (No 2)  QSC 265 at  (“Burragubba”).
 At .
 Sharples v Council of the Queensland Law Society Incorporated  QSC 392 at ; Whitsunday Residents Against Dumping Ltd v Chief Executive, Department of Environment and Heritage Protection (No 2)  QSC 159 at  – .
 Graham v Legal Services Commissioner  QCA 6 at .
 (1998) 193 CLR 72 at 97 .
- Published Case Name:
Lonergan v Stilgoe & Ors (No 2)
- Shortened Case Name:
Lonergan v Stilgoe (No 2)
 QSC 146
29 May 2020