In this decision, Davis J considered the proper construction of s 49 of the Judicial Review Act 1991, which allows for the awarding of costs in judicial review proceedings. His Honour held that as the applicant had merely claimed costs in the application for review and had not ‘made’ an application for costs under s 49 of the Act, s 49(4) applied so that costs were to be determined under r 681 of the Uniform Civil Procedure Rules 1999.
3 August 2018
The second respondent (“Slatcher”) swore a complaint under the Justices Act 1886 against the applicant (“Globex”) alleging that it had committed an offence against s 9(1B) of the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (Cth). . Slatcher purported to effect service of the summons which issued pursuant to the complaint by delivering the summons to a firm of solicitors and a shipping agent. . Globex brought an application in the Magistrates Court seeking rulings to the effect that it had not been effectively served with the summons, and that the Magistrates Court therefore had no power to hear the complaint. . The Magistrate decided the application against Globex. .
Globex then sought judicial review of that decision in the Supreme Court. . Davis J heard the application for judicial review and made declarations setting aside the decision of the Magistrate. . His Honour ordered an exchange of submissions on costs. . In the present judgment, his Honour determined the question of costs as between Globex and Slatcher. .
Section 49 of the Judicial Review Act 1991 (“the Act”) relevantly provides:
“(1) If an application (the costs application) is made to the court by a person (the relevant applicant) who –
(a) has made a review application; or
the court may make an order –
(d) that another party to the review application indemnify the relevant applicant in relation to the costs properly incurred in the review application by the relevant applicant, on a party and party basis, from the time the costs application was made; or
(e) that a party to the review application is to bear only that party’s own costs of the proceeding, regardless of the outcome of the proceeding.
(4) Subject to this section, the rules of court made in relation to the awarding of costs apply to a proceeding arising out of a review application.”
The Court’s general power to award costs is found in r 681 of the Uniform Civil Procedure Rules 1999 (“UCPR”).
Globex sought an order for costs on the standard basis. . It submitted that it should have its costs from the time of filing the application because costs were claimed in the application, so that that was “the time the application [for costs] was made” for the purposes of s 49(1)(d) of the Act. . His Honour noted that both ss 49(1)(d) and 49(1)(e) contemplate the making of a costs order in proceedings which at the point of time of the costs application are yet to be heard and determined. . He noted that the present proceeding raised questions as to whether s 49 also applies where costs are determined after the application for the principal relief has been decided. .
His Honour referred to Anghel v Minister for Transport (No 2)  2 Qd R 454, where McPherson JA held that the effect of s 49 is to displace the costs provision of the rules of court to the extent that its provisions are inconsistent with s 49, and that s 49 is capable of operating prospectively as well as retrospectively. . Davis J also noted that in Anghel, the point at which the application was “made” within the meaning of s 49 was the filing of the application for orders under s 49. , .
Davis J then referred to the later decision of the Court of Appeal in Attorney-General v Barnes  QCA 152, where the Court held that a costs application for another party to pay the applicant’s costs under s 49(1)(d) is prospective only and does not apply where the application for costs was made only after the substantive decision was handed down and the costs had been incurred before the costs application was made. . The Court held that in such a case, s 49(4) applies so that the rules of court in relation to awarding of costs apply. .
His Honour concluded that “[i]f the applicant has ‘made’ an application for a costs order under s 49(1)(d) by filing the application for judicial review, then it is not fatal to the claim for a costs order under s 49(1)(d) that the costs application is to be heard after determination of the primary relief”. . However, in the present proceeding Globex had not made an application under s 49(1)(d) at any time before determination of the application for principal relief. . The application for judicial review did not mention s 49, but simply sought “costs”. . In those circumstances, his Honour held that Globex had to rely on r 681 of the UCPR. .
His Honour then considered various factors which were relevant to the exercise of the costs discretion. -. He concluded that the Magistrate had been led into error by the submissions made to him on behalf of Slatcher. . Once the Magistrate had erred, the bringing of the judicial review application and the incurring of the expense of bringing the application were necessary. . Accordingly, his Honour ordered that Slatcher should pay the costs of the application. .
M J Hafeez-Baig