Lonergan v Stilgoe (No 2) - [2020] QSC 146

SUPREME COURT OF QUEENSLAND

CITATION:

Lonergan v Stilgoe & Ors (No 2) [2020] QSC 146

PARTIES:

PATRICK JOSEPH LONERGAN AND PRUE MADELINE LONERGAN

(applicant)

v
PETA G STILGOE, OAM, MEMBER OF THE LAND COURT OF QUEENSLAND
(first respondent)
GERALD DAVID GEORGE SKILTON
(second respondent)
DIRECTOR GENERAL, DEPARTMENT OF ENVIRONMENT AND SCIENCE

(third respondent)

FILE NO:

BS 7386 of 2019

DIVISION:

Trial Division

PROCEEDING:

Application for a costs order

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

29 May 2020

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Applegarth J

ORDER:

The applicants are to pay the third respondent’s costs of and incidental to the application on the standard basis.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – PROCEDURE AND EVIDENCE – COSTS – where an application for judicial review was dismissed – where the applicants seek an order under s 49(1)(e) of the Judicial Review Act 1991 (Qld) that they bear only their own costs of the application – whether s 49(1)(e) authorises an order concerning costs incurred before a costs application is made under s 49 – whether the application involved matters of public interest – whether the discretion to make a costs order under s 49(1)(e) should be exercised in favour of the applicants

Judicial Review Act 1991 (Qld), s 49

Anghel v Minister for Transport (No 2) [1995] 2 Qd R 454; [1994] QCA 232, cited
Attorney-General (Qld) v Barnes [2014] QCA 152, cited
Burragubba v Minister for Natural Resources and Mines
(No 2) [2017] QSC 265, cited
Graham v Legal Services Commissioner [2015] QCA 6, cited
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11, cited
Sharples v Council of the Queensland Law Society Incorporated [2000] QSC 392, cited
Whitsunday Residents Against Dumping Ltd v
Chief Executive, Department of Environment and Heritage Protection (No 2) [2017] QSC 159, cited

COUNSEL:

M T Hickey for the third respondent

SOLICITORS:

Marland Law for the applicant

Crown Solicitor for the third respondent

On 23 April 2020 I dismissed the further amended application for a statutory order of review.[1] I made directions as to any submissions as to costs.
[1]Lonergan v Stilgoe & Ors [2020] QSC 86.
The only issue as to costs relates to costs as between the applicant and the third respondent. The third respondent seeks an order that the applicant pay the third respondent’s costs of and incidental to the application. The applicants seek an order pursuant to s 49(1)(e) of the Judicial Review Act 1991 (Qld) (“JRA”) that they bear only their own costs of the proceedings.
Section 49(1)(e) permits a costs application by a party who has made a review application to seek an order that the party is to bear only that party’s own costs of the proceeding, regardless of the outcome of the proceeding.
Section 49(1)(e) seemingly differs from s 49(1)(d). Section 49(1)(d) is prospective only and does not apply to a situation such as the present where…

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 Lonergan v Stilgoe (No 2)

Details

AGLC: Lonergan v Stilgoe (No 2) [2020] QSC 146
Case: [2020] QSC 146
Decision Date: 29 May 2020

CaseChat Overview and Summary

The case of Lonergan v Stilgoe (No 2) involves an application for judicial review, with Lonergan and others challenging the decision of Stilgoe and others. The applicants sought to limit their liability for costs under section 49(1)(e) of the Judicial Review Act 1991 (Qld), requesting to bear only their own costs of the application. This case raised questions about the scope of section 49(1)(e) in terms of its application to costs incurred prior to a formal costs application, as well as the relevance of public interest in the exercise of the court's discretion.

The primary legal issue was whether section 49(1)(e) of the Act allows for a costs order that encompasses costs incurred before a formal costs application is made under section 49. Additionally, the court had to determine if the application involved matters of public interest and whether the discretion under section 49(1)(e) should be exercised in favour of the applicants.

The court examined the statutory provisions and found that section 49(1)(e) does not explicitly authorise an order concerning costs incurred before a formal costs application. Furthermore, the court considered the public interest aspect and concluded that the application did not involve matters of significant public importance. Based on these findings, the court exercised its discretion under section 49(1)(e) and ordered that the applicants were to pay the third respondent's costs of and incidental to the application on the standard basis.

In summary, the applicants' request to limit their costs liability under section 49(1)(e) was denied, and they were ordered to pay the third respondent's costs on the standard basis.

Orders

Orders of the court

The applicants are to pay the third respondent’s costs of and incidental to the application on the standard basis.

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:	Lonergan v Stilgoe & Ors (No 2) [2020] QSC 146
PARTIES:	PATRICK JOSEPH LONERGAN AND PRUE MADELINE LONERGAN (applicant) v PETA G STILGOE, OAM, MEMBER OF THE LAND COURT OF QUEENSLAND (first respondent) GERALD DAVID GEORGE SKILTON (second respondent) DIRECTOR GENERAL, DEPARTMENT OF ENVIRONMENT AND SCIENCE (third respondent)
FILE NO:	BS 7386 of 2019
DIVISION:	Trial Division
PROCEEDING:	Application for a costs order
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	29 May 2020
DELIVERED AT:	Brisbane
HEARING DATE:	On the papers
JUDGE:	Applegarth J
ORDER:	The applicants are to pay the third respondent’s costs of and incidental to the application on the standard basis.
CATCHWORDS:	ADMINISTRATIVE LAW – JUDICIAL REVIEW – PROCEDURE AND EVIDENCE – COSTS – where an application for judicial review was dismissed – where the applicants seek an order under s 49(1)(e) of the Judicial Review Act 1991 (Qld) that they bear only their own costs of the application – whether s 49(1)(e) authorises an order concerning costs incurred before a costs application is made under s 49 – whether the application involved matters of public interest – whether the discretion to make a costs order under s 49(1)(e) should be exercised in favour of the applicants Judicial Review Act 1991 (Qld), s 49 Anghel v Minister for Transport (No 2) [1995] 2 Qd R 454; [1994] QCA 232, cited Attorney-General (Qld) v Barnes [2014] QCA 152, cited Burragubba v Minister for Natural Resources and Mines (No 2) [2017] QSC 265, cited Graham v Legal Services Commissioner [2015] QCA 6, cited Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11, cited Sharples v Council of the Queensland Law Society Incorporated [2000] QSC 392, cited Whitsunday Residents Against Dumping Ltd v Chief Executive, Department of Environment and Heritage Protection (No 2) [2017] QSC 159, cited
COUNSEL:	M T Hickey for the third respondent
SOLICITORS:	Marland Law for the applicant Crown Solicitor for the third respondent