Chattaway v Minister for Health (No 2)

[2021] SASC 89

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Judicial Review)

CHATTAWAY v MINISTER FOR HEALTH AND ORS (No 2)

[2021] SASC 89

Judgment of the Honourable Justice Stanley  

ADMINISTRATIVE LAW - JUDICIAL REVIEW - PROCEDURE AND EVIDENCE - COSTS

The applicant instituted proceedings for judicial review seeking to review a direction made on 26 January 2020 by the Chief Psychiatrist acting as the delegate for the Minister for Health and Wellbeing. The terms of the direction were to transfer the applicant to Yatala Labour Prison from James Nash House pursuant to s 269V(2)(b) of the Criminal Law Consolidation Act 1935 (SA) (CLCA) for a term of three months. The application for judicial review was commenced on 13 May 2020.

On 17 June 2020 a question as to the construction of s 269V(1) was referred by a case stated to the Full Court. On 1 July 2020 the Full Court answered the question of law. The question of law was answered in accordance with the submissions of the respondents. The Full Court ordered that the costs of the question reserved be the respondent’s costs in the cause. On 26 November 2020 the High Court refused special leave to appeal from the decision of the Full Court. Subsequently the High Court ordered that the applicant pay the respondent’s costs of the application for special leave.

Following the refusal of the special leave application the applicant did not file or serve any documents in these proceedings or otherwise put the respondents on notice as to how he wished to progress the proceedings, if at all. In circumstances where the question of law referred to the Full Court disposed of the ground pleaded at paragraph 8 of the second statement of facts, issues and contentions filed in this matter, but not the ground pleaded at paragraph 9 of that document.  The applicant has taken no further steps to advance his application for judicial review since 30 November 2020.  It appears the applicant no longer seeks any relief from the court.

The respondents sought an order for their costs of the proceedings on a standard costs basis to be agreed or taxed on the basis that they had been wholly successful in the proceedings. The applicant opposed the application for costs and contended that there should be no order as to costs on the basis that the cause of action in proceedings for judicial review has not been finally resolved and has now become moot.

Held

1.      The respondents have been successful on the only aspect of the proceedings determined by this Court, being the question of law answered by the Full Court.

2.      Following judgment in that matter, the applicant has not pressed any other aspect of the proceedings.  As a result, the only costs incurred in these proceedings have been as a result of the institution of the proceedings, the reservation to and determination of the question of law in the Full Court and this application. 

3.      There is no proper reason why the respondents should not be entitled to an award of costs.

4.      The applicant’s submission that the cause is moot because the applicant was returned to James Nash House in December 2020 is not accepted. Once the applicant was returned to Yatala the relevant issue sought to be agitated by the application for judicial review was re-enlivened.

It is ordered that the applicant pay the respondents their costs on the standard costs basis to be agreed or taxed.

Criminal Law Consolidation Act 1935 (SA) s 269V; Supreme Court Act 1935 (SA) s 40, referred to.

Machado & Anor v Underwood & Anor (No. 2) [2016] SASCFC 123; Board of Examiners v XY [2006] VSCA 190, applied.

Re the Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622, distinguished.

CHATTAWAY v MINISTER FOR HEALTH AND ORS (No 2)
[2021] SASC 89

Application for Judicial Review

STANLEY J:

1. In this matter the applicant instituted proceedings for judicial review seeking to review a direction made on 26 January 2020 by the Chief Psychiatrist acting as the delegate for the Minister for Health and Wellbeing. The terms of the direction were to transfer the applicant to Yatala Labour Prison from James Nash House pursuant to s 269V(2)(b) of the Criminal Law Consolidation Act 1935 (SA) (CLCA) for a term of three months. The application for judicial review was commenced on 13 May 2020. After that, the Chief Psychiatrist made a series of further directions pursuant to s 269V(1) of the CLCA directing that the applicant remain in the custody, supervision and care of the Chief Executive of the Department of Correctional Services and be kept in custody at Yatala.

2. On 17 June 2020 a question as to the construction of s 269V(1) was referred by a case stated to the Full Court. On 1 July 2020 the Full Court answered the question of law. The question of law was answered in accordance with the submissions of the respondents. The Full Court ordered that the costs of the question reserved be the respondent’s costs in the cause. On 26 November 2020 the High Court refused special leave to appeal from the decision of the Full Court. Subsequently the High Court ordered that the applicant pay the respondent’s costs of the application for special leave.

3. Following the refusal of the special leave application the applicant did not file or serve any documents in these proceedings or otherwise put the respondents on notice as to how he wished to progress the proceedings, if at all.  This was in circumstances where the question of law referred to the Full Court disposed of the ground pleaded at paragraph 8 of the second statement of facts, issues and contentions filed in this matter, but not the ground pleaded at paragraph 9 of that document.  The applicant has taken no further steps to advance his application for judicial review since 30 November 2020.  It appears the applicant no longer seeks any relief from the court. 

4. With the exception of the period from 8 December 2020 to 1 February 2021 when the applicant was transferred back to James Nash House, he has remained in Yatala pursuant to a series of directions since 26 March 2020.  The most recent direction made on 24 March 2021 directs that the applicant be kept in custody in Yatala until 29 June 2021. 

5. As events have transpired, the applicant for some time has expressed a preference to be kept at Yatala rather than James Nash House. 

6. In these circumstances the respondents seek an order for their costs of the proceedings on a standard costs basis to be agreed or taxed.  The applicant opposes the application for costs and contends that there should be no order as to costs.

7. The respondents submit that they are entitled to costs on the basis they have been wholly successful in the proceedings.  The applicant submits that no order should be made as to the costs of the proceedings on the basis that the cause of action in a proceedings for judicial review has not been finally resolved and has now become moot.  He contends that the Court cannot know who was the successful party for the purposes of accessing the costs discretion and invokes the principle enunciated by McHugh J in Re the Minister for Immigration and Ethnic Affairs; ex parte Lai Qin:[1]

   In most jurisdictions today, the power to order costs is a discretionary power. Ordinarily, the power is exercised after a hearing on the merits and as a general rule the successful party is entitled to his or her costs. Success in the action or on particular issues is the fact that usually controls the exercise of the discretion. A successful party is prima facie entitled to a costs order. When there has been no hearing on the merits, however, a court is necessarily deprived of the factor that usually determines whether or how it will make a costs order. In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. The court cannot try a hypothetical action between the parties. To do so would burden the parties with the costs of a litigated action which by settlement or extra curial action they had avoided. In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action. In administrative law matters, for example, it may appear that the defendant has acted unreasonably in exercising or refusing to exercise a power and that the plaintiff had no reasonable alternative but to commence a litigation. Thus, for example, in R v Gold Coast City Council; Ex parte Raysun Pty Ltd, the Full Court of the Supreme Court of Queensland gave a prosecutor seeking mandamus the costs of the proceedings up to the date when the respondent Council notified the prosecutor that it would give the prosecutor the relief that it sought. The Full Court said that the prosecutor had reasonable ground for complaint in respect of the attitude taken by the respondent in failing to consider the application by the prosecutor for approval of road and drainage plans. Moreover, in some cases a judge may feel confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried. This is perhaps the best explanation of the unreported decision of Pincus J in South East Queensland Electricity Board v Australian Telecommunications Commission where his Honour ordered the respondent to pay 80 per cent of the applicant's taxed costs even though his Honour found that both parties had acted reasonably in respect of the litigation. But such cases are likely to be rare. If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings. This approach has been adopted in a large number of cases.

   [1] (1997) 186 CLR 622 at 624-625.

8. In addition, the applicant submits that no order for costs should be made in circumstances where he is in custody, impecunious and as a result, in no position to satisfy any costs order that might be made against him.

9. Section 40 of the Supreme Court Act 1935 (SA) confers a broad discretion on the Court to award costs. The only fetter on the exercise of that discretion is that it must be made in the interests of justice and for reasons connected to the litigation. Pursuant to the Uniform Civil Rules 2020 (SA), generally costs follow the event.[2]

   [2]    UCR 194.5(2).

10. I do not accept the submissions of the applicant.  The respondents have been successful on the only aspect of the proceedings determined by this Court, being the question of law answered by the Full Court.  Following judgment in that matter, the applicant has not pressed any other aspect of the proceedings.  As a result, the only costs incurred in these proceedings have been as a result of the institution of the proceedings, the reservation to and determination of the question of law in the Full Court and this application.  In my view there is no proper reason why the respondents should not be entitled to an award of costs.

11. The Full Court ordered that the costs of the question of law be the respondent’s costs in the cause.  The purpose of that order was clearly to avoid a situation where, given at that stage the balance of the proceedings remained to be determined, the respondents may have been ultimately unsuccessful on the proceedings such that it would be inappropriate for the respondents to have their costs in the Full Court.  That eventuality has not occurred.  Rather, the respondents have been ultimately successful in the proceedings, which will effectively allow them to obtain their costs of the question of law reserved. 

12. The fact that paragraph 9 of the second statement of facts, issues and contentions has not been determined does not mean that the cause is moot or that the proceedings have not been determined in the respondent’s favour.  To all intents and purposes the proceedings have been finalised.  That paragraph 9 has not been determined is not due to any conduct by the respondents but rather for forensic strategic decisions by the applicant to, shortly after the proceedings commenced, reserve the question of law and then seek special leave to appeal, rather than proceed expeditiously to determine the entirety of the second statement of facts, issues and contentions.  Decisions of the applicant should not have the effect of depriving the respondents of their costs.  This is a very different kind of case from Lai Qin.

13. I do not accept the applicant’s submission grounded in impecuniosity.  Assuming, for the purposes of the argument, that the applicant is impecunious and his circumstances render him unable to satisfy any costs order that may be made against him, that is not necessarily a sound basis to decline to award costs against an impecunious person.  If impecuniosity, or any other factor personal to a party, was to result in no order as to costs, it would have the potential to be productive of injustice as costs would be determined not by the conduct of the proceedings, over which the parties have control, but by factors personal to a party over which the other party or parties have no control.

14. In Machado & Anor v Underwood & Anor (No. 2)[3] Kourakis CJ and Nicholson J held that ordinarily, impecuniosity will not justify failing to exercise a costs discretion adversely to a litigant where the judicial exercise of the discretion requires the making of an adverse costs order.[4]  The authorities recognise that exceptional circumstances might justify taking into account the impecuniosity of a party against whom is sought an adverse costs order.[5]  Exceptional circumstances do not exist in this case. 

    [3] [2016] SASCFC 123.

    [4] [2016] SASCFC 123 at [45].

    [5]    Board of Examiners v XY [2006] VSCA 190 at [35].

15. I do not accept the submission that the cause was moot because the applicant was returned to James Nash House in December 2020.  That appears to have occurred for a short period before he was returned to Yatala.  The submission that there was no utility in pressing on with the application in those circumstances must be rejected.  Once the applicant was returned to Yatala the relevant issue sought to be agitated by the application for judicial review was re-enlivened.

16. For these reason I would make an order that the applicant pay the respondents their costs of the proceedings on the standard costs basis to be agreed or taxed.