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[2022] QCA 154
The primary issues arising in this recent case were whether an objector to an application for admission as a legal practitioner was a party, and whether there was scope under the Civil Proceedings Act 2011 to enable them to recoup their costs. The court held that an objector is a participant to the proceeding and that the court is empowered to award costs in favour of a non-party, such as an objector where it is in the interests of justice that such an order be made.
Bowskill CJ and Mullins P and Flanagan J
19 August 2022
The applicant sought admission to the legal profession. The Board opposed it and the objector was granted leave to appear on his own behalf. [1]. Subsequently the applicant withdrew her application and agreed to pay the respondent/Board’s costs of the proceeding; albeit no agreement as to costs was reached with the objector. The matter of outlays as between the applicant and the objector, a non-party to the proceeding, was reserved. [2]. Thereafter, he sought to recover the sum of $8,558.11 as outlays, comprising the cost of transcripts, professional services, couriers and filing fees. [4].
The status of the objector
The court clarified that since the objector had been granted leave to appear, accordingly at that juncture he became a participant in the proceeding (as distinct from a party). Properly construed the objector could not be regarded as a party to the proceeding, being an application for admission to the legal profession. [7]. The court noted that Justice Dalton had already confirmed at first instance (in Re Legal Practitioners Admissions Board and Jenkins [2021] QSC 246), that an objector does not become a participant in the proceeding by which an applicant seeks to be admitted to the legal profession unless and until the Court of Appeal allows them leave to do so.
Did the court have power to award costs in favour of a non-party?
Pursuant to s 15 Civil Proceedings Act 2011 the court is able to award costs in any proceeding unless otherwise provided. In the court’s view that enables an order for costs to be made against a non-party to a proceeding (see KMB v Legal Practitioners Admissions Board (Queensland) [2018] 1 Qd R 500 at [54], referring to Knight v FP Special Assets Ltd (1992) 174 CLR 178). The relevant question here, however, was whether there is scope under the section for the court to award costs in their favour.
The court held that there is. In its view the section is broad enough to permit this (see Re Pan Pharmaceuticals Ltd; Selim v McGrath (2004) 48 ACSR 681 at [16]) and furthermore there is no contrary provision. The court noted that in Knight v FP Special Assets Ltd (1992) 174 CLR 178 at 203 Justice Dawson explained that whilst an award of costs to a non-party would only be made in limited circumstances, “that is a question of discretion, not jurisdiction”. In the same case, the court emphasised that an award of costs in favour of a non-party can be contemplated if it is in the interests of justice to do so: see Knight v FP Special Assets Ltd (1992) 174 CLR 178 at 193 per Mason CJ and Deane J.
Disposition
The court determined that it was in the interests of justice that an order be made requiring the applicant to pay a portion of the objector’s costs sought by him, being his outlays, fixed in the amount of $4,685.11. [14].
A Jarro