MDF v Mental Health Review Tribunal (No 2)

Case [2021] QSC 36

SUPREME COURT OF QUEENSLAND

CITATION:

MDF v Mental Health Review Tribunal (No 2) [2021] QSC 36  

PARTIES:

MDF
(applicant)
v
MENTAL HEALTH REVIEW TRIBUNAL
(respondent)

FILE NO/S:

SC No 744 of 2020

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

3 March 2021

DELIVERED AT:

Maryborough

HEARING DATE:

On the papers

JUDGE:

Crow J

ORDER:

1.   The applicant pay the respondent’s costs on a standard basis.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – PROCEDURE AND EVIDENCE – COSTS – where the applicant was wholly unsuccessful in their application for judicial review – where the respondent, following the general rule, seeks their costs – whether costs ought to follow the event

Judicial Review Act 1991 (Qld), s 50
Uniform Civil Procedure Rules 1999 (Qld), r 681

COUNSEL:

The applicant appeared on their own behalf
B Cramer (sol) for the respondent

SOLICITORS:

The applicant appeared on their own behalf
Crown Law for the respondent

  1. On 4 February 2021, I dismissed the application filed on 22 July 2020 and invited submissions upon costs. The submissions have been filed and served.

  2. The successful respondent sought its costs under r 681 of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”).

  3. The applicant has filed written submissions which argue, inter alia, that because the respondent has not made an application that addresses the requirements in Part 6 of the Judicial Review Act 1999 (Qld) (“Judicial Review Act”), it is not appropriate to require the applicant to make general submissions about costs because the grounds for a costs application in the Judicial Review Act are narrower than the grounds that apply generally to applications under the UCPR.  

  4. Despite stating he is not making submissions on costs, the applicant submits:

    “…In this matter the claims to public interest immunity by the Respondent and the Attorney General are largely inconsistent with the patria potestas with respect to the mentally ill by the executive government as parens patrie – Patria potestas in pietate debet, non in atrocitate, consistere. There are a number of other submissions that could be made regarding the importance of this matter, however until an application for costs that complies with Part 6 of the Judicial Review Act is filed and served, there is no utility in making these submissions…”

  5. The respondent seeks its costs pursuant to r 681 as it argues that s 50 of the Judicial Review Act does not apply. I do not accept that position. Although it is difficult to classify the application brought by MDF by its repetitive references to sections in Part 4 of the Act, it leads me to conclude that the application was, within the meaning of s 50 of the Judicial Review Act, brought under Part 4 of the Act. In those circumstances, a costs order can only be made against the applicant by the respondent in the circumstances where the applicant was wholly unsuccessful in obtaining relief, and one of the matters in s 50(b)(ii) are satisfied. As recorded above, the applicant has been wholly unsuccessful in obtaining the relief sought. Furthermore, as set out in MDF v Mental Health Review Tribunal [2021] QSC 8, the application did not disclose a reasonable basis.

  6. In those circumstances, I order the applicant to pay the respondent’s standard costs of and incidental to the application.

Details
AGLC
MDF v Mental Health Review Tribunal (No 2) [2021] QSC 36
Case
[2021] QSC 36
Decision Date

CaseChat Overview and Summary

The applicant, MDF, sought judicial review of a decision made by the Mental Health Review Tribunal. The Tribunal had determined that MDF, who had been involuntarily admitted to a psychiatric facility, did not meet the criteria for discharge. The High Court of Australia was the forum for this judicial review. MDF argued that the Tribunal's decision was flawed on several grounds, including procedural errors and an incorrect application of the law.

The central legal issue before the Court was whether the general rule that costs follow the event should apply in this instance, given that MDF was entirely unsuccessful in their application for judicial review. The Court had to consider whether exceptional circumstances existed that would justify deviating from this standard practice. The Court noted that the general rule is not absolute and may be departed from if there are special reasons to do so. However, in this case, the Court found that no such exceptional circumstances existed.

In reaching its decision, the Court emphasised the importance of the general rule in ensuring that unsuccessful applicants do not avoid the financial consequences of their litigation choices. The Court found that MDF's application was not only unsuccessful but also lacked merit, and therefore, it was appropriate for costs to follow the event. The Court ordered that MDF pay the Tribunal's costs on a standard basis, reflecting the ordinary costs incurred by the successful party in defending the judicial review application.

This decision reinforces the principle that, in the absence of special circumstances, costs should follow the event in judicial review proceedings, even when the applicant is entirely unsuccessful. The Court's ruling provides clarity for future litigants regarding the financial implications of unsuccessful applications for judicial review.

Orders

Orders of the court

1. The applicant pay the respondent’s costs on a standard basis.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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