Beale v O'Connell (No 2) - [2018] QSC 63

SUPREME COURT OF QUEENSLAND

CITATION:

Beale v O’Connell & Ors (No 2) [2018] QSC 63

PARTIES:

JAMES ANDREW BEALE

(applicant)

v

DAVID O’CONNELL

(first respondent)
ANGIE JORGENSEN
(second respondent)

WOMEN’S LEGAL SERVICE QUEENSLAND
(third respondent)
and
ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
(intervening)

FILE NO/S:

SC No 9640 of 2016

DIVISION:

Trial Division

PROCEEDING:

Application for costs

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

28 March 2018

DELIVERED AT:

Brisbane

HEARING DATE:

Written submissions

JUDGE:

Jackson J

ORDER:

That there be no order as to costs.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – PROCEDURE AND EVIDENCE – COSTS – where application under Judicial Review Act 1991 (Qld) – where third respondent was a successful party – where application supported on a reasonable basis – where another respondent carried the burden of responding to application – whether costs order should be made

Civil Proceedings Act 2011 (Qld), s 15
Judicial Review Act 1991 (Qld), s 49
Uniform Civil Procedure Rules 1999 (Qld), r 681

Anghel v Minister for Transport(No 2) [1995] 2 Qd R 454, cited

Foster v Shaddock & Ors [2016] QCA 163, cited

COUNSEL:

A Boe with P Morreau for the applicant

K Hillard for the third respondent

SOLICITORS:

Robertson O’Gorman for the applicant

Wallace O’Hagan Lawyers for the third respondent

On 19 June 2017 I ordered that the application for a statutory order of review (or prerogative order) in relation to a number of decisions made by the first respondent in connection with an investigation into the death of Tracey Ann Beale under the Coroners Act 2003 (Qld) be dismissed.[1] Following that decision, the third respondent applies for an order that the applicant pay the third respondent’s costs of the proceeding or, alternatively, that the applicant pay the third respondent’s costs of the issues relating to the sixth decision, being the first respondent’s order that Professor Douglas attend to give evidence at the inquest.[2]
[1] Beale v O’Connell & Ors [2017] QSC 127.
[2] Beale v O’Connell & Ors [2017] QSC 127, [107]-[111].
The third respondent was named as the respondent to the originating application, appeared on the occasions when application was returned before the Court and directions were made, filed an affidavit or affidavits and two outlines of argument and appeared on the final hearing.
There was a question raised in the proceeding as to whether the third respondent’s interest extended to all of the issues or questions raised by the originating application, or was more limited. There is no question, however, that the third respondent was a successful party in the proceeding.
Accordingly, if the discretionary power to make an order as to costs were simply that engaged under s 15 of the Civil Proceedings Act 2011 (Qld) and r 681(1) of the Uniform Civil Procedure Rules 1999 (Qld), the usual order would be that the costs follow the event and the applicant would be ordered to pay the third respondent’s costs of the application or at least of the issues…

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 Beale v O'Connell (No 2)

Details

AGLC: Beale v O'Connell (No 2) [2018] QSC 63
Case: [2018] QSC 63
Decision Date: 28 March 2018

CaseChat Overview and Summary

The matter of Beale v O'Connell (No 2) involved an application for judicial review under the Judicial Review Act 1991 (Qld). The applicant, Beale, sought a review of a decision made by the third respondent, who was a successful party in the proceedings. The second respondent, O'Connell, bore the burden of responding to the application. The central issue was whether costs should be awarded to the third respondent for the successful outcome of the judicial review application.

The court examined the merits of the application and the reasonable basis upon which it was supported. It found that the application was justified on a reasonable basis and that the second respondent, O'Connell, had the responsibility to respond to the application. The court considered whether it was appropriate to make a costs order in favour of the third respondent, who had been the successful party. The court noted the principle that costs generally follow the event, but also recognised the need to balance this with the circumstances of the case, including the reasonable basis of the application.

In light of the above considerations, the court concluded that the application was supported on a reasonable basis and the second respondent had the burden of responding to it. The court decided that it was not appropriate to make a costs order in favour of the third respondent. Therefore, the court ruled that there should be no order as to costs.

Orders

Orders of the court

That there be no order as to costs.

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:	Beale v O’Connell & Ors (No 2) [2018] QSC 63
PARTIES:	JAMES ANDREW BEALE (applicant) v DAVID O’CONNELL (first respondent) ANGIE JORGENSEN (second respondent) WOMEN’S LEGAL SERVICE QUEENSLAND (third respondent) and ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (intervening)
FILE NO/S:	SC No 9640 of 2016
DIVISION:	Trial Division
PROCEEDING:	Application for costs
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	28 March 2018
DELIVERED AT:	Brisbane
HEARING DATE:	Written submissions
JUDGE:	Jackson J
ORDER:	That there be no order as to costs.
CATCHWORDS:	ADMINISTRATIVE LAW – JUDICIAL REVIEW – PROCEDURE AND EVIDENCE – COSTS – where application under Judicial Review Act 1991 (Qld) – where third respondent was a successful party – where application supported on a reasonable basis – where another respondent carried the burden of responding to application – whether costs order should be made Civil Proceedings Act 2011 (Qld), s 15 Judicial Review Act 1991 (Qld), s 49 Uniform Civil Procedure Rules 1999 (Qld), r 681 Anghel v Minister for Transport(No 2) [1995] 2 Qd R 454, cited Foster v Shaddock & Ors [2016] QCA 163, cited
COUNSEL:	A Boe with P Morreau for the applicant K Hillard for the third respondent
SOLICITORS:	Robertson O’Gorman for the applicant Wallace O’Hagan Lawyers for the third respondent