Chapman v. Richards & Anor

[2008] QSC 164

SUPREME COURT OF QUEENSLAND

CITATION:

Chapman v Richards & Anor [2008] QSC 164

PARTIES:

PETER JOHN CHAPMAN
(applicant)

v

P F RICHARDS
(first respondent)

ASSISTANT COMMISSIONER SYDNEY DAVID RICHARD MELVILLE
(second respondent)

CRIME AND MISCONDUCT COMMISSION
(third respondent)

FILE NO:

BS9034/06

DIVISION:

Trial Division

PROCEEDING:

Costs order on the papers

ORIGINATING COURT:

Supreme Court, Brisbane

DELIVERED ON:

4 August 2008

DELIVERED AT:

Supreme Court, Brisbane

HEARING DATE:

16 May 2008, 27 June 2008, 16 July 2008

JUDGE:

Douglas J

ORDER:

The applicant pay the third respondent’s costs in respect of the originating application filed 20 October 2006, the application filed 1 November 2007 and the application filed on 13 March 2008, on the standard basis.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – PROCEDURE AND EVIDENCE – COSTS – power to award – unsuccessful applicants

Judicial Review Act 1991, s. 49

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

COUNSEL:

P.E. Smith for the applicant
P.J Callaghan SC for the third respondent

SOLICITORS:

Gilshenan & Luton for the applicant
Official Solicitor for the Crime and Misconduct Commission for the third respondent     

1. Douglas J: After the delivery of reasons for judgment in this matter on 6 June 2008 the parties made further written submissions in respect of costs. The unsuccessful applicant submits that there should be no order as to costs, relying on s. 49(1)(e) of the Judicial Review Act 1991 which gives the Court a discretion to order that the applicant bear only his own costs of the proceeding having regard to his financial resources, or those of any person associated with him who has an interest in the outcome of the proceeding, and whether the proceeding involves an issue that affects or may affect the public interest in addition to any personal right or interests of the applicant; see s. 49(2)(a) and s. 49(2)(b). Whether the proceeding disclosed a reasonable basis for the application or could be supported on a reasonable basis is also relevant; s. 49(2)(c) and s. 49(2)(d).

1. The matters the applicant argued were of significant public interest were the “abuse of process” argument referred to in my reasons and the issue that arose about the admissibility of fresh evidence consequent upon the applicant’s discovery after the initial argument in this matter that he suffered from a brain tumour which may have affected his actions in respect of the matters charged against him.  The abuse of process argument was that the action of the third respondent, the Crime and Misconduct Commission (“CMC”) in appealing to the Misconduct Tribunal seeking the applicant’s dismissal after he had been dealt with within the police service by an assistant commissioner who had no powers to dismiss gave rise to an abuse of process.  For the reasons expressed in my decision I was of the view that the structure of the relevant legislation, including the absence of a role for the CMC in the original reference of the matter to an assistant commissioner, meant that the argument could not succeed. 

1. The CMC’s submission was that it was hard to see how the public interest could be served by the abuse of process argument, which sought to limit the CMC’s right to appeal disciplinary decisions made by officers of the Queensland Police Service, where that action itself was taken by the CMC in order to protect the public interest.  There is strength in that submission and it does not seem to have been a case where the CMC can be said to have acquiesced in the assistant commissioner’s dealing with the matter.  That was not a decision for it.  It may have been of interest to the Queensland Police Union of Employees, of which the applicant was a member, to seek a judicial determination of the practice said to have been developing where members could be dismissed in the Misconduct Tribunal on an appeal brought by the CMC where such a penalty had not been available to the decision maker at first instance.  It seems to me, however, that the legislation made that possibility quite clear and that the principal issue here was the effect of the decision on the applicant’s private interests. 

1. The same comment may be made in respect of the application to lead fresh evidence relevant to his medical condition which was not available to the Misconduct Tribunal.  I am willing to accept that that application involved an issue that may affect the public interest in respect of the conduct of judicial review applications generally but it was contrary to well established views of the role of judicial review of administrative action and was, of course, advanced particularly in respect of the personal interests of the applicant. 

1. The evidence establishes that the applicant is in difficult financial circumstances, having had no income since September 2007 and with no savings, where his wife works two days a week in a secretarial position, they are otherwise relying on the generosity of friends and family to help them and are in the process of arranging either the sale or refinancing of the family home to meet the applicant’s ongoing liabilities.  The value of that home is not referred to in the evidence but it seems likely that the applicant is not well off. 

1. These proceedings have, however, been conducted on his behalf and his legal costs have been met by the Queensland Police Union of Employees.  The legal defence funding guidelines of that body do not contain any provision concerning the payment of a costs order made against a member but in the union’s solicitors’ experience the union has paid any costs award made against a member where that member had been granted legal defence funding through the union. 

1. The CMC points out that the union has significant resources to meet such costs.  The CMC also argues that other factors are relevant including that no costs orders were made in relation to proceedings before the Misconduct Tribunal, the applicant did not have to fund his own representation in this matter and the decision being scrutinised was not that of the CMC although, of course, it was the CMC’s decision to take the matter on appeal before the Misconduct Tribunal.  It says that it did so because of its statutory duty to ensure that misconduct was dealt with in an appropriate way.  Its stance was also vindicated by the result of the appeal to the Tribunal and its resistance to these applications.

1. It seems to me that the public interest issues relied on in addition to the applicant’s personal rights or interests were not so significant or such strong arguments as to warrant the application of s. 49(1)(e) in favour of the applicant especially where the financial resources of the union were used to allow the application to be brought, no doubt on the basis that it and its members have an interest in the outcome of the proceedings, see s. 49(2)(a)(ii), and where the reasonable likelihood is that the applicant’s costs will be paid by the union. This distinguishes this case from the result in Anghel v Minister for Transport (No. 2) [1995] 2 Qd R 454.

1. Accordingly I order that the applicant pay the third respondent’s costs in respect of the originating application filed 20 October 2006, the application filed 1 November 2007 and the application filed on 13 March 2008 on the standard basis.