Burke v Minister for State Development, Infrastructure, Local Government and Planning & Anor

In this significant case, Mullins P considered the nature of the Court’s power to make pre-emptive orders that each party to an appeal will bear its own costs, and the principles relevant to the exercise of that power. Ultimately, her Honour declined to make the order sought.

Mullins P

6 December 2022

Mr Burke applied to appeal from a decision of the Planning and Environment Court to refuse his challenge to a decision of the respondent Minister. [9]. As part of his application for leave to appeal, he sought a “protective costs order” – that is, an order that each party to the appeal bear its own costs, regardless of the outcome of the appeal, unless one of the parties acts frivolously or vexatiously in the conduct of the appeal. [2].

Given the Court’s broad discretion to make orders for costs under s 15 Civil Proceedings Act 2011 and rr 681 and 766(1)(d) Uniform Civil Procedure Rules 1999, Mullins P proceeded on the assumption that the Court had jurisdiction to make a protective costs order in the absence of an express statutory provision to the contrary. [10]. Although her Honour identified authorities from other jurisdictions relating to the making of protective costs orders, Mullins P observed that neither authority binds the Queensland Court of Appeal on the manner in which it should exercise the discretion to make a protective costs order. [12]–[14].

Against this background, Mullins P identified two potentially relevant factors relating to exercising the discretion to make a protective costs order:

1. Ifthe inability of an applicant to pay the costs of the other parties to an appeal if they fail; and

2. Ifwhether the appeal relates to a matter of public importance.

Further, Mullins P noted that the making of a protective costs order confers an advantage in litigation upon a party. [17]. Accordingly, it is for the party seeking that advantage to “make full disclosure to the Court of information relevant to the exercise of the discretion to make a protective costs order”. [17]. Her Honour also considered whether Mr Burke may benefit the private interests of the applicant, and noted his prospects of success, although they were not formally considered. [22].

On the evidence before the Court, Mullins P declined to make the protective costs order because Mr Burke had not made a full disclosure of his financial position and may obtain a personal benefit from the application. [23]. Accordingly, the application for a protective costs order was dismissed. [25].

M Paterson