Berenyi v Maynard - [2016] QSC 25

SUPREME COURT OF QUEENSLAND

CITATION:

Berenyi v Maynard & Anor [2016] QSC 25

PARTIES:

MARGARET THERESA BERENYI

(applicant)

v
IAN GRAHAM MAYNARD, DIRECTOR-GENERAL, QUEENSLAND HEALTH

(first respondent)

AND

SUE RICKERBY, DIRECTOR-GENERAL, THE DEPARTMENT OF SCIENCE, INFORMATION TECHNOLOGY, INNOVATION AND THE ARTS

(second respondent)

FILE NO:

SC No 7058 of 2014

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

25 February 2016

DELIVERED AT:

Brisbane

HEARING DATE:

Written submissions provided on 2 and 3 December 2015

JUDGE:

Philippides JA

ORDER:

The parties are to provide a draft order in terms of the orders made in [21].

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE – where applicant succeeded on first issue but failed on second issue in case – where first issue involved whether the decision to terminate the applicant’s employment was amenable to judicial review – where second issue involved whether this was affected by jurisdictional error – where applicant submitted there be no order to costs – where respondents sought costs based on the event being the outcome of the hearing – where respondents sought indemnity costs based on offers made

Judicial Review Act 1991 (Qld), s 49
Public Service Act 2008 (Qld), s 188

Uniform Civil Procedure Rules 1999 (Qld), r 681

Alborn & Ors v Stephens & Ors [2010] QCA 58, followed
Berenyi v Maynard & Anor [2015] QSC 370, considered
Firebird Global Master Fund II Ltd v Republic of Nauru [No 2] [2015] HCA 53, cited
Hamcor Pty Ltd v Marsh Pty Ltd [2013] QCA 395, followed
Interchase Corporation Ltd (in liq) v Grosvenor Hill (Qld) Pty Ltd (No 3) [2003] 1 Qd R 26; [2001] QCA 191, followed
Murdoch v Lake [2014] QCA 269, followed
Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 251 CLR 322; [2013] HCA 53, cited

Ross v Leach [2014] QCA 144, cited

COUNSEL:

R W Haddrick for the applicant

S E Brown QC with J K Carter for the respondents

SOLICITORS:

Fisher Dore for the applicant

Minter Ellison for the respondents

PHILIPPIDES JA:
Background

The applicant brought an originating application dated 31 July 2014 seeking judicial review pursuant to the Supreme Court’s inherent jurisdiction in respect of four decisions, being the first respondent’s decision to terminate the applicant’s employment and each of the first respondent’s decisions to make a disciplinary finding in respect of three allegations. The applicant sought orders against the respondents that the decision of the first respondent to terminate the employment of the applicant be declared void; a declaration that the applicant remains an employee of the second respondent pursuant to the Public Service Act 2008 (Qld) (the PSA); alternatively orders in the nature of certiorari and mandamus in respect of the applicants continued employment by the second respondent. The applicant filed a further application dated 21 January 2015 seeking to amend the originating application (the amending application).
The respondents argued that the…

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 Berenyi v Maynard

Details

AGLC: Berenyi v Maynard [2016] QSC 25
Case: [2016] QSC 25
Decision Date: 25 February 2016

CaseChat Overview and Summary

In the case of Berenyi v Maynard, the applicant sought judicial review of a decision to terminate their employment, specifically challenging whether the decision was amenable to judicial review and whether it was affected by a jurisdictional error. The Queensland Court of Appeal was tasked with determining the appropriate costs order in the context of the applicant's partial success on the jurisdictional issue but failure on the second issue. The respondents argued for costs on the standard basis until a certain date and on the indemnity basis thereafter, while the applicant opposed any order for costs against them.

The court examined the principle that costs follow the event, considering both the issues raised and the success achieved on each. The jurisdictional issue was deemed significant and distinct, with both parties extensively arguing it. Despite the applicant's overall failure, the court found merit in treating the jurisdictional issue as a separate event for costs purposes. The court also noted that the rejection of the respondents' offers did not warrant indemnity costs as these offers did not specify such a condition and were made late in the proceedings.

Consequently, the court ruled that the applicant should pay the respondents' costs of the proceeding and the amendment application, awarding costs on the standard basis until 16 September 2014 and on the indemnity basis thereafter. The court dismissed the applicant's argument that the financial implications of the orders should affect the costs decision, emphasizing the distinct nature of the jurisdictional issue. The final orders required the parties to provide a draft order in accordance with the court's decision.

Orders

Orders of the court

The parties are to provide a draft order in terms of the orders made in [21].

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

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Ratio Decidendi

Legal Principle Established

It was submitted that the applicant should pay the respondents’ costs of the proceeding and the amendment application with costs awarded on the standard basis until 16 September 2014 and on the indemnity basis thereafter. Consideration I do not consider that there is any merit in the applicant’s third argument that the financial implications for the parties of the orders made by the court on 18 December 2015 ought to be considered in relation to the question of costs. The point simply highlights the ironical outcome of the judgment for the applicant. There is merit in the argument that the “event” ought to be approached as two separate issues. In Murdoch v Lake,[6] Morrison JA (with whom the other members of the Court agreed) said:“When one refers to the usual rule as being that the costs of a proceeding follow the event, the ‘event’ was explained by Muir JA in Alborn & Ors v Stephens & Ors: ‘[8] The “event” is not to be determined merely by reference to the judgment or order obtained by the plaintiff or appellant, but is to be determined by reference to “the events or issues, if more than one, arising in the proceedings.” However, a party which has not been entirely successful is not inevitably or even, perhaps, normally deprived of some of its costs.’” (citations omitted)[6] [2014] QCA 269 at [20]. In Hamcor Pty Ltd v Marsh Pty Ltd [2013] QCA 395, the Court stated:“In considering the general principle that costs follow the event, it is appropriate to have regard, not only to the order obtained by the appellants but, to the range of issues ventilated on appeal and the appellants’ success in respect of those issues (Alban & Ors v Stephens & Ors [2010] QCA 58 at [8], Interchase Corporation Ltd (in liq) v Grosvenor Hill (Qld) Pty Ltd (No 3) [2003] 1 Qd R 26, 60-61).” The jurisdictional issue, on which the applicant succeeded, was treated by the parties from the outset as a quite distinct issue and was the subject of lengthy oral and written submissions. While success on that issue was ultimately a Pyrrhic victory for the applicant, the issue was nevertheless a central one that was required to be determined. It was not the subject of any concession by the respondents, who strongly contested the issue and sought orders dismissing the originating application on the basis of their submissions on that issue alone. The issue involved determining questions of some complexity as to the nature and source of the power exercised to terminate the applicant, who held a position as a public servant. And while the applicant’s claims as to the scope of the judgment in terms of precedent value are overstated, the jurisdictional issue has potentially broader relevance beyond the facts of this case. Nor do I consider that the rejection of the offers made by the respondent ought to sound in an order for indemnity costs, given the significance of the jurisdictional issue. It was not stated in the offers that indemnity costs would be sought and the larger offer was made at a quite late stage of the proceeding.

CITATION:	Berenyi v Maynard & Anor [2016] QSC 25
PARTIES:	MARGARET THERESA BERENYI (applicant) v IAN GRAHAM MAYNARD, DIRECTOR-GENERAL, QUEENSLAND HEALTH (first respondent) AND SUE RICKERBY, DIRECTOR-GENERAL, THE DEPARTMENT OF SCIENCE, INFORMATION TECHNOLOGY, INNOVATION AND THE ARTS (second respondent)
FILE NO:	SC No 7058 of 2014
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	25 February 2016
DELIVERED AT:	Brisbane
HEARING DATE:	Written submissions provided on 2 and 3 December 2015
JUDGE:	Philippides JA
ORDER:	The parties are to provide a draft order in terms of the orders made in [21].
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE – where applicant succeeded on first issue but failed on second issue in case – where first issue involved whether the decision to terminate the applicant’s employment was amenable to judicial review – where second issue involved whether this was affected by jurisdictional error – where applicant submitted there be no order to costs – where respondents sought costs based on the event being the outcome of the hearing – where respondents sought indemnity costs based on offers made Judicial Review Act 1991 (Qld), s 49 Public Service Act 2008 (Qld), s 188 Uniform Civil Procedure Rules 1999 (Qld), r 681 Alborn & Ors v Stephens & Ors [2010] QCA 58, followed Berenyi v Maynard & Anor [2015] QSC 370, considered Firebird Global Master Fund II Ltd v Republic of Nauru [No 2] [2015] HCA 53, cited Hamcor Pty Ltd v Marsh Pty Ltd [2013] QCA 395, followed Interchase Corporation Ltd (in liq) v Grosvenor Hill (Qld) Pty Ltd (No 3) [2003] 1 Qd R 26; [2001] QCA 191, followed Murdoch v Lake [2014] QCA 269, followed Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 251 CLR 322; [2013] HCA 53, cited Ross v Leach [2014] QCA 144, cited
COUNSEL:	R W Haddrick for the applicant S E Brown QC with J K Carter for the respondents
SOLICITORS:	Fisher Dore for the applicant Minter Ellison for the respondents