Leahy v Barnes (No 2) - [2013] QSC 263

SUPREME COURT OF QUEENSLAND

CITATION:

Leahy v Barnes (No 2) [2013] QSC 263

PARTIES:

ALAN NOEL THOMAS LEAHY
(applicant)
v
MICHAEL BARNES
(respondent)
ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(intervener)

FILE NO/S:

SC No 135 of 2013

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

25 September 2013

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGE:

Henry J

FURTHER ORDER:

The intervener pay the applicant’s costs of the application to be assessed on the standard basis.

CATCHWORDS:

PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – COSTS OF WHOLE ACTION – GENERALLY – where the applicant applied for a statutory order of review to set aside the decision of the respondent Coroner that he be committed to stand trial – where the respondent Coroner’s decision to commit the applicant to stand trial was set aside – where the applicant seeks an order for costs – where the intervener contends there should be no order as to costs because of the number and proportion of issues upon which the applicant was unsuccessful, the extent of amendment to the case for relief progressively presented on the applicant’s behalf and the character of the decision under review – whether costs should follow the event – whether the applicant is entitled to costs

Judicial Review Act 1991 (Qld) s 49(2), s 49(2)(c), s 49(4), s 51, s 51(2)(a), s 51(2)(b),
Uniform Civil Procedure Rules 1999 (Qld) r 681, r 684

Allianz Australia Insurance Ltd v Swainson [2011] QCA 179, cited
Anghel v Minister for Transport (No 2) [1995] 2 Qd R 454; [1994] QCA 232, cited
Colburt v Beard [1992] 2 Qd R 67, cited
Leahy v Barnes [2013] QSC 226, cited

Theiss v TCN Channel Nine (No 5) [1994] 1 Qd R 156, cited

COUNSEL:

P J Callaghan SC with A Collins for the applicant
R G Marsh (sol) for the respondent

M Hinson QC for the intervener

SOLICITORS:

Lilley Grose & Long Solicitors on behalf of the applicant
Crown Law on behalf of the respondent and the intervener

The applicant applied for a statutory order of review seeking to set aside a decision of the respondent Coroner that the applicant be committed to stand trial. The applicant also sought an order for costs.

On 27 August 2013 I set aside the Coroner’s decision to commit the applicant for trial and invited submissions as to costs.[1]
[1]Leahy v Barnes [2013] QSC 226.

It is common ground that if any order for costs is made it ought only be made against the Attorney-General who took carriage of resistance of the application pursuant to his power to intervene under s 51 of the Judicial Review Act 1991 (Qld). Section 51(2)(b) provides that if the Attorney-General intervenes “the court may ... make such order as to costs against the State as the court considers appropriate”.

The provision does not fall to be considered in isolation. Pursuant to s…

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.

Continue reading Leahy v Barnes (No 2)

Details

AGLC: Leahy v Barnes (No 2) [2013] QSC 263
Case: [2013] QSC 263
Decision Date: 25 September 2013

CaseChat Overview and Summary

In the matter of Leahy v Barnes, the applicant, Leahy, sought a statutory order of review to set aside the decision of the respondent Coroner that he be committed to stand trial. The case was heard in the Supreme Court of Victoria. The dispute centred on whether the applicant, Leahy, was entitled to costs following the successful application to set aside the Coroner's decision. The intervener argued that costs should not be awarded to Leahy due to the number and proportion of issues on which Leahy was unsuccessful, the extent of amendments made to the case for relief, and the nature of the decision under review.

The court was required to determine whether the general principle that costs follow the event applied in this case. This involved considering the proportion of successful and unsuccessful issues, the extent of amendments to the case for relief, and the character of the decision under review. The court also needed to assess whether the applicant's success in the main issue of setting aside the Coroner's decision justified an award of costs despite the unsuccessful issues.

The court found that the general principle that costs follow the event applied in this case, and that Leahy was entitled to costs. The court acknowledged that there were unsuccessful issues and amendments to the case for relief, but held that the main issue of setting aside the Coroner's decision was of significant importance. The court concluded that Leahy's success on this main issue justified an award of costs. The court further noted that the character of the decision under review did not negate the entitlement to costs.

The court ordered that Leahy be awarded costs of the whole action. The intervener's contention that no order should be made as to costs was rejected by the court. The court emphasised the importance of the main issue and Leahy's success in setting aside the Coroner's decision, and determined that costs should follow the event in this case.

Orders