Chibanda v Chief Executive, Queensland Health

In the case of Chibanda v Chief Executive, Queensland Health, the applicant sought an extension of time to bring a judicial review proceeding against the Chief Executive of Queensland Health. The application for an extension of time was dismissed, and subsequently, the proceeding itself was also dismissed. The applicant then applied for a costs protection order under section 49 of the Judicial Review Act 1991 (Qld), contending that costs should not follow the event given the circumstances of the case.

The primary legal issue before the court was whether the applicant was entitled to a costs protection order to avoid paying the respondents’ costs, given that the application for an extension of time and the judicial review proceeding were both dismissed. The court had to consider the general principle that costs follow the event, as well as any exceptional circumstances that might warrant a departure from this principle. The court examined the factors relevant to determining whether the applicant's application was frivolous or vexatious, which could justify an order that costs do not follow the event.

The court held that the applicant's application for an extension of time was not frivolous or vexatious, and therefore, the general rule that costs follow the event applied. The court found that the applicant had a reasonable prospect of success in relation to the extension of time, and the dismissal of the application was not due to any fault on the applicant's part. However, the court concluded that the applicant should bear the costs of the proceeding as the dismissal of the judicial review proceeding indicated that the applicant's case was ultimately unsuccessful. The court emphasised that the principle of costs following the event was an important mechanism to deter frivolous litigation.

The final orders of the court were that the applicant pay the first respondent’s costs and the second respondent’s costs of and incidental to the proceeding. The court's decision underscored the importance of the principle that costs follow the event, while also recognising the exceptional circumstances in which a costs protection order might be appropriate.