F v Crime and Corruption Commission
[2021] QCA 253
•26 November 2021
SUPREME COURT OF QUEENSLAND
CITATION:
F v Crime and Corruption Commission [2021] QCA 253
PARTIES:
F
(appellant)
v
CRIME AND CORRUPTION COMMISSION
(respondent)FILE NO/S:
Appeal No XXXX of 2020
SC No XXXX of 2019DIVISION:
Court of Appeal
PROCEEDING:
General Civil Appeal – Further Order
ORIGINATING COURT:
Supreme Court at Brisbane – [2020] QSC 245 (Jackson J)DELIVERED ON:
26 November 2021
DELIVERED AT:
Brisbane
HEARING DATE:
Heard on the papers
JUDGES:
Morrison and Mullins JJA and Boddice J
ORDER:
The appellant must pay the respondent’s costs of the appeal.
CATCHWORDS:
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW EVENT – GENERAL PRINCIPLES AND EXERCISE OF DISCRETION – where there was an unsuccessful appeal from an application made to a Supreme Court judge – where there are special costs provisions which apply to the application made to the Supreme Court judge – where the appeal was unsuccessful for the same reasons articulated by the primary judge – whether r 766(1)(a) of the Uniform Civil Procedure Rules 1999 (Qld) extends the application of the special costs provisions to the making of a costs order in respect of the unsuccessful appeal – whether there should be a departure from the usual order that costs follow the event
Crime and Corruption Act 2001 (Qld), s 196, s 332(1)
Uniform Civil Procedure Rules 1999 (Qld), r 766F v Crime and Corruption Commission[2021] QCA 244, related
COUNSEL:
R J Anderson QC, with P Morreau, for the appellant
G W Diehm QC, with J S Brien, for the respondentSOLICITORS:
Ashurst Australia for the appellant
Crime and Corruption Commission for the respondent
THE COURT: The court published its reasons for dismissing the appellant’s appeal: F v Crime and Corruption Commission [2021] QCA 244 (the reasons). The court gave the parties an opportunity to make further submissions on costs in writing which both parties have done.
The appellant submits there ought to be no order as to costs. The respondent submits that costs should follow the event and that a costs order should therefore be made in favour of the respondent.
The grounds of appeal were grouped into four topics for the purpose of dealing with them that were set out in the reasons (at [27]-[30]).
The first topic related to the subject matter that is covered by s 196(7) of the Crime and Corruption Act 2001 (Qld) (the Act).
The second topic invoked s 332(1) of the Act. Subsections (3) to (6) of s 332 make special provisions about costs of the application under s 332(1) for a mandatory or restrictive injunction addressed to the respondent.
There were no special costs provisions in the Act that had any application to the third and fourth topics pursued by the appellant.
The appellant submits that the special costs provisions in s 196(7) and s 332(3) of the Act which expressly apply to an application made to a Supreme Court judge respectively under s 196(2) and s 332(1) of the Act can be exercised by this court on the appeal from the decision made by the primary judge under those provisions, as this court has the same powers and duties on appeal of the court at first instance pursuant to r 766(1)(a) of the Uniform Civil Procedure Rules 1999 (Qld).
Even if s 196(7) and s 333(3) of the Act do not apply to this court when making costs orders on an appeal from a decision of a single judge to which those provisions did apply, the appellant submits that the policy reflected in those provisions can be taken into account by this court in exercising its broad discretion in deciding the issue of costs on the appeal and that the public interest in the issues determined on the appeal remain a relevant matter in exercising the jurisdiction to award costs and may justify departure from the usual approach as to costs.
As submitted by the respondent, each of s 196(7) and s 332(3) of the Act was relevant to the determination of costs before the primary judge, as each provision is concerned with the costs of a relevant application made to a Supreme Court judge and not any subsequent appeal made to this court in respect of the judge’s decision on the application. Rule 766(1)(a) of the UCPR would have relevance in dealing with the question of costs on an appeal in this court from an application under s 196(2) or s 332(1) of the Act where the result of the appeal required the court to consider the costs order that should have been made on the application at first instance. We do not consider in this matter that r 766(1)(a) applies s 196(7) and s 332(3) to the making of the costs order in respect of the unsuccessful appeal from the decision on the application under s 196(2) and s 332(1) of the Act.
We do consider that the fact that the Act does make special costs provisions to the extent that an application is made under s 196(2) or s 332(1) of the Act is not irrelevant, when it comes to this court’s decision on the costs of the appeal. It is also relevant, however, that the appeal was unsuccessful for the same reasons that had been clearly articulated by the primary judge by reference to relevant authorities. It is also relevant that that the special costs provisions under the Act had no application at all to the third and fourth topics pursued by the appellant on the appeal.
It was the appellant’s choice to appeal the primary judge’s decision without success. In all the circumstances, we are not persuaded that there should be a departure from the usual order that costs follow the event.
The order that should be made is: The appellant must pay the respondent’s costs of the appeal.
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