BB v Liebsanft - [2003] QSC 389

SUPREME COURT OF QUEENSLAND

CITATION:

BB v Liebsanft & Ors [2003] QSC 389

PARTIES:

BB
(applicant)
v
RH LIEBSANFT (Acting Magistrate)
(first respondent)
SC JOHNSTONE (Magistrate)
(second respondent)
DF WILKINSON (Magistrate)
(third respondent)
AB
(fourth respondent)

FILE NO:

S4921 of 2003

DIVISION:

Trial Division

PROCEEDING:

Application – Further orders

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

13 November 2003

DELIVERED AT:

Brisbane

HEARING DATE:

18 September 2003

JUDGE:

Mackenzie J

ORDER:

The applicant pay the fourth respondent’s costs of and incidental to the application including reserved costs, if any, on the standard basis

CATCHWORDS:

PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – ORDER FOR COSTS ON INDEMNITY BASIS – where judgment delivered against applicant – where costs submissions sought – where submitted applicant unreasonably subjected fourth respondent to proceedings and associated costs – whether costs should be awarded on indemnity basis

PROCEDURE – COSTS – GENERAL RULE - COSTS FOLLOW THE EVENT – COSTS OF WHOLE ACTION – GENERALLY– where proceedings disclosed no basis for review application – where applicant submitted he bear only his own costs under s 49 Judicial Review Act 1991 (Qld) or pursuant to exercise of inherent jurisdiction of Court – where whether costs should follow the event or some other order appropriate

R v Australian Broadcasting Tribunal &Ors; Ex parte Hardiman & Ors (1980) 144 CLR 13
Re: Fettell (1952) 54 SR (NSW) 221
Wheeler v War Veterans’ Homes (153) 89 CLR 353

Judicial Review Act 1991 (Qld), s 49
Supreme Court Act 1995 (Qld) s 253
Uniform Civil Procedure Rules 1999 (Qld) , r 689

COUNSEL:

The applicant appeared on his own behalf
No appearance for the first, second and third respondents, who abide by the order of the Court
R V Bowler for the fourth respondent

SOLICITORS:

The applicant appeared on his own behalf
No appearance for the first, second and third respondents, who abide by the order of the Court
Shera Jones Paras for the fourth respondent

MACKENZIE J: When the decision in this matter was delivered on 26 September 2003 leave was given to the parties to make submissions in writing with respect to costs. Written submissions were received from the applicant and the fourth respondent. The first to third respondents (judicial officers involved in the underlying proceedings) had from an early stage indicated that they would abide the order of the court. That stance accords with that endorsed by the High Court in R v Australian Broadcasting Tribunal and Others; ex parteHardiman and Others (1980) 144 CLR 13.

The applicant was unsuccessful in all respects on his application. The fourth respondent seeks costs on an indemnity basis. The applicant seeks an order under

s 49(1)(e) of the Judicial Review Act 1991 (Qld); or alternatively that there be no order as to costs; or in the further alternative that the question of costs be reserved to the Court of Appeal since the applicant has appealed against the decision. The basis of the last mentioned proposition…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading BB v Liebsanft

Details

AGLC: BB v Liebsanft [2003] QSC 389
Case: [2003] QSC 389
Decision Date: 13 November 2003

CaseChat Overview and Summary

The proceedings between BB and Liebsanft involved a dispute over the costs incurred during a legal action. The applicant, BB, had been unsuccessful in their challenge against the fourth respondent, Liebsanft. Following the judgment against BB, submissions were made regarding the allocation of costs. BB argued that they should only be responsible for their own costs, either under the provisions of section 49 of the Judicial Review Act 1991 (Qld) or pursuant to the inherent jurisdiction of the court. Conversely, Liebsanft argued that BB had unreasonably subjected them to the proceedings, thereby warranting an order for costs on an indemnity basis.

The court was required to determine whether the general rule that costs follow the event should apply, or if an alternative order was more appropriate given the circumstances. The court considered the lack of any basis for a review application and the fact that BB had unreasonably initiated the proceedings. The court acknowledged the principle that costs generally follow the event, but also recognised the potential for departing from this rule in cases where a party has acted unreasonably.

In deciding the matter, the court found that BB had unreasonably subjected Liebsanft to the proceedings, which justified an order for costs on an indemnity basis. However, the court also noted that the proceedings had disclosed no basis for a review application, and therefore, the costs should not encompass the entire action. The court ultimately ordered that BB pay Liebsanft's costs of and incidental to the application on the standard basis. This decision balanced the principle of costs following the event with the need to address the unreasonable conduct of BB in initiating the proceedings.

Orders

Orders of the court

The applicant pay the fourth respondent’s costs of and incidental to the application including reserved costs, if any, on the standard basis

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	BB v Liebsanft & Ors [2003] QSC 389
PARTIES:	BB (applicant) v RH LIEBSANFT (Acting Magistrate) (first respondent) SC JOHNSTONE (Magistrate) (second respondent) DF WILKINSON (Magistrate) (third respondent) AB (fourth respondent)
FILE NO:	S4921 of 2003
DIVISION:	Trial Division
PROCEEDING:	Application – Further orders
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	13 November 2003
DELIVERED AT:	Brisbane
HEARING DATE:	18 September 2003
JUDGE:	Mackenzie J
ORDER:	The applicant pay the fourth respondent’s costs of and incidental to the application including reserved costs, if any, on the standard basis
CATCHWORDS:	PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – ORDER FOR COSTS ON INDEMNITY BASIS – where judgment delivered against applicant – where costs submissions sought – where submitted applicant unreasonably subjected fourth respondent to proceedings and associated costs – whether costs should be awarded on indemnity basis PROCEDURE – COSTS – GENERAL RULE - COSTS FOLLOW THE EVENT – COSTS OF WHOLE ACTION – GENERALLY– where proceedings disclosed no basis for review application – where applicant submitted he bear only his own costs under s 49 Judicial Review Act 1991 (Qld) or pursuant to exercise of inherent jurisdiction of Court – where whether costs should follow the event or some other order appropriate R v Australian Broadcasting Tribunal &Ors; Ex parte Hardiman & Ors (1980) 144 CLR 13 Re: Fettell (1952) 54 SR (NSW) 221 Wheeler v War Veterans’ Homes (153) 89 CLR 353 Judicial Review Act 1991 (Qld), s 49 Supreme Court Act 1995 (Qld) s 253 Uniform Civil Procedure Rules 1999 (Qld) , r 689
COUNSEL:	The applicant appeared on his own behalf No appearance for the first, second and third respondents, who abide by the order of the Court R V Bowler for the fourth respondent
SOLICITORS:	The applicant appeared on his own behalf No appearance for the first, second and third respondents, who abide by the order of the Court Shera Jones Paras for the fourth respondent