Hytch v O'Connell (No 2) - [2018] QSC 99

SUPREME COURT OF QUEENSLAND

CITATION:

Hytch v O’Connell (No 2) [2018] QSC 99

PARTIES:

ROBERT PAUL HYTCH

(applicant)

v
DAVID O’CONNELL
(respondent)
ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(intervener)

FILE NO:

BS No 8603 of 2016

DIVISION:

Trial Division

PROCEEDING:

Application for costs

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

14 May 2018

DELIVERED AT:

Brisbane

HEARING DATE:

Written submissions

JUDGE:

Applegarth J

ORDER:

The applicant pay 75 per cent of the intervener’s costs of and incidental to the proceeding

CATCHWORDS:

PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – where the applicant applied to judicially review a Coroner’s findings – where the intervener successfully contested both limbs of the applicant’s argument and the application was dismissed – where the intervener seeks an order that the applicant pay the intervener’s costs of and incidental to the proceeding – where the intervener was a necessary party – where intervention was necessary to protect an interest not common with the main parties – where the applicant did not apply for an order under s 49 Judicial Review Act 1991 (Qld) – where the applicant raised an important issue of statutory interpretation

Judicial Review Act 1991 (Qld) s 49(4)

Uniform Civil Procedure Rules r 681

Attorney-General for the State of Queensland v Barnes & Anor [2014] QCA 152 cited

City of Burnside v Attorney-General of South Australia and Others (1994) 63 SASR 65 cited

Oshlack v Richmond River Council (1998) 193 CLR 72 cited

COUNSEL:

G R Rice QC and R W Haddrick for the applicant

M T Hickey for the intervener

SOLICITORS:

Ruddy Tomlins Baxter for the applicant

Crown Solicitor for the intervener

The parties have made written submissions on costs. The intervener seeks an order that the applicant pay the intervener’s costs of and incidental to the proceeding. The applicant submits that he should be ordered to pay 50 per cent of the intervener’s costs.
The fact that an intervener is a necessary party and provides important assistance to the Court does not necessitate an order that the intervener recover costs.[1] Professor
Dal Pont, after referring to authority, states the following proposition:
“As a general rule, a successful intervener can recover costs only if the intervention was necessary to protect an interest not common with the main parties ...”[2]
[1] City of Burnside v Attorney-General of South Australia and Others (1994) 63 SASR 65 at 67.
[2] G.E. Dal Pont, Law of Costs (3^rd ed., 2013, Lexis Nexis Butterworths: Chatswood) at [11.42].
In this matter, intervention was necessary to protect an interest not common with the main parties.
The respondent, a coroner, appropriately took no active role in the proceeding. The issues raised in the application involved questions of statutory interpretation and matters of some public importance relating to judicial review of a coroner’s finding. Without the assistance of the intervener, the Court would have been obliged to consider a large body of evidence without the assistance of a contradictor in order to properly determine 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.

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Details

Case: [2018] QSC 99
Decision Date: 14 May 2018

CaseChat Overview and Summary

In the case of Hytch v O'Connell (No 2), the applicant sought judicial review of a Coroner's findings, with an intervener contesting both limbs of the applicant's argument. The application was ultimately dismissed. The intervener applied for an order that the applicant pay their costs of and incidental to the proceeding, arguing they were a necessary party whose intervention was necessary to protect an interest not common with the main parties. The applicant did not apply for an order under section 49 of the Judicial Review Act 1991 (Qld), and the intervener's role in successfully contesting the applicant's arguments was significant.

The court was required to determine whether the intervener's costs should be paid by the applicant and, if so, in what proportion. The court considered the intervener's status as a necessary party, the necessity of their intervention to protect a distinct interest, and the applicant's failure to seek a costs order. The court also took into account that the intervener's successful contestation of the applicant's arguments was pivotal in the outcome of the proceeding.

The court found that the intervener was indeed a necessary party whose intervention was necessary to protect an interest not shared with the main parties. The applicant's failure to seek a costs order under section 49 of the Judicial Review Act 1991 (Qld) was noted, as was the intervener's successful contestation of the applicant's arguments. Balancing these factors, the court ordered that the applicant pay 75 per cent of the intervener's costs of and incidental to the proceeding.

The court's final orders were that the applicant pay 75 per cent of the intervener's costs of and incidental to the proceeding. This decision underscores the importance of necessary parties in judicial review proceedings and the consequences for parties who do not seek specific relief regarding costs.

Orders

Orders of the court

The applicant pay 75 per cent of the intervener’s costs of and incidental to the proceeding

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Hytch v O’Connell (No 2) [2018] QSC 99
PARTIES:	ROBERT PAUL HYTCH (applicant) v DAVID O’CONNELL (respondent) ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (intervener)
FILE NO:	BS No 8603 of 2016
DIVISION:	Trial Division
PROCEEDING:	Application for costs
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	14 May 2018
DELIVERED AT:	Brisbane
HEARING DATE:	Written submissions
JUDGE:	Applegarth J
ORDER:	The applicant pay 75 per cent of the intervener’s costs of and incidental to the proceeding
CATCHWORDS:	PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – where the applicant applied to judicially review a Coroner’s findings – where the intervener successfully contested both limbs of the applicant’s argument and the application was dismissed – where the intervener seeks an order that the applicant pay the intervener’s costs of and incidental to the proceeding – where the intervener was a necessary party – where intervention was necessary to protect an interest not common with the main parties – where the applicant did not apply for an order under s 49 Judicial Review Act 1991 (Qld) – where the applicant raised an important issue of statutory interpretation Judicial Review Act 1991 (Qld) s 49(4) Uniform Civil Procedure Rules r 681 Attorney-General for the State of Queensland v Barnes & Anor [2014] QCA 152 cited City of Burnside v Attorney-General of South Australia and Others (1994) 63 SASR 65 cited Oshlack v Richmond River Council (1998) 193 CLR 72 cited
COUNSEL:	G R Rice QC and R W Haddrick for the applicant M T Hickey for the intervener
SOLICITORS:	Ruddy Tomlins Baxter for the applicant Crown Solicitor for the intervener