Murphy v Legal Services Commissioner (No 2)

[2016] QSC 284

SUPREME COURT OF QUEENSLAND

CITATION:

Murphy v Legal Services Commissioner (No 2) [2016] QSC 284

PARTIES:

JOHN PAUL MURPHY

(applicant)

v

LEGAL SERVICES COMMISSIONER

(respondent)

FILE NO:

BS6839/15

DIVISION:

Trial

PROCEEDING:

Application

DELIVERED ON:

5 December 2016

DELIVERED AT:

Brisbane

HEARING DATE:

Written Submissions on 15 August 2016 and 22 August 2016

JUDGE:

Jackson J

ORDER:

The applicant is to bear only the applicant’s costs of the proceeding.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – PROCEDURE AND EVIDENCE – COSTS – where the applicant had limited financial means – where the proceeding raised questions of whether decisions made under the Legal Profession Act 2007 (Qld) were decisions to which the Judicial Review Act 1991 (Qld) applied – whether the court should order, pursuant to s 49 of the Judicial Review Act 1991 (Qld), that the applicant bear only the applicant’s costs of the proceeding

Judicial Review Act 1991 (Qld), s 49

Uniform Civil Procedure Rules 1999 (Qld), r 678, r 680, r 681, r 684

Foster v Shaddock [2016] QCA 163, cited

COUNSEL:

Applicant in person

J Bell QC and A Scott for the respondent

SOLICITORS:

Legal Services Commission for the respondent

1. Jackson J: On 8 August 2016 I ordered that the originating application be dismissed.[1]  The question of costs remains. 

   [1]     Murphy v Legal Services Commissioner [2016] QSC 174.

2. The successful respondent applies for an order that the applicant pay the respondent’s costs of the proceeding.  The applicant applies for an order that each party bear its own costs; that is, he is to bear only his own costs of the proceeding. 

   The Statutory Context

3. Section 15 of the Civil Proceedings Act 2011 (Qld) provides that a court may award costs in all proceedings unless otherwise provided. Chapter 17A of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) provides in r 678(1) that the chapter “applies to costs payable or to be assessed under an Act…”. Rule 680 provides that “[a] party to a proceeding can not recover any costs of the proceeding from another party other than under these rules or an order of the court.” Rule 681(1) provides that the “costs of a proceeding, including an application in a proceeding, are in the discretion of the court but follow the event, unless the court orders otherwise.” However, r 684(1) provides that the court “may make an order for costs in relation to a particular question in, or a particular part of, a proceeding.”

4. Section 49 of the Judicial Review Act 1991 (Qld) (“JRA”) provides, in part:

   “(1)If an application (the costs application) is made to the court by a person (the relevant applicant) who—

   (a)     has made a review application;
   …
   the court may make an order—

   (e)that a party to the review application is to bear only that party’s own costs of the proceeding, regardless of the outcome of the proceeding. 

   (2)In considering the costs application the court is to have regard to—

   (a)     the financial resources of—

   (i)      the relevant applicant; or

   (ii) any person associated with the relevant applicant who has an interest in the outcome of the proceeding; and

   (b)whether the proceeding involves an issue that affects, or may affect, the public interest, in addition to any personal right or interest of the relevant applicant; and

   (c)if the relevant applicant is a person mentioned in subsection (1)(a)— whether the proceeding discloses a reasonable basis for the review application; and

   (d)…

   (4)Subject to this section, the rules of court made in relation to the awarding of costs apply to a proceeding arising out of a review application.

   ….

   (6)In this section—

   review application means—

   (a)an application for a statutory order of review under section 20, 21 or 22…”

5. It is not controversial that s 49 applies to a decision on a question of costs after an application has been dismissed under s 48.

   The Relevant Considerations

6. First, the financial resources of the applicant are apparently limited.  He was granted a reduction of the filing fee on that basis.  That may be treated as evidence of his straightened circumstances.[2]  He submits that he is incapable of paying any costs order.

   [2]     Foster v Shaddock [2016] QCA 163, [18].

7. Second, in my view, the proceeding did involve an issue that affects or may affect the public interest. The primary judgment decided that the respondent’s decision under s 446 of the Legal Profession Act 2007 (Qld) (to no longer deal with the subject matter of the applicant’s complaint about an unlawful operator) and under s 448 of that Act (to dismiss the complaint about conduct of Australian legal practitioner) was not a decision to which the JRA applied.[3] But as the reasons disclosed, that was not a simple matter. It is a matter of some public interest to determine the relevant limits to the operation of the JRA as a basis for review of decisions made by the respondent under either ss 446 or 448.

   [3]     Murphy v Legal Services Commissioner [2016] QSC 174, [90].

8. Third, although I dismissed the proceeding under s 48 of the JRA, there was at least a reasonable basis for the argument as to the application of the JRA to the decisions in question. That point has been assumed in favour of the applicant in an earlier proceeding in this court related to the same complaints.[4]  It was the subject of argument before me that was not a foregone conclusion. 

   [4]     Murphy v Legal Services Commissioner [2013] QSC 70.

9. Subject to those considerations, the position under the UCPR in relation to the awarding of costs is that costs follow the event, unless the court orders otherwise.

10. Having regard to the text and ordinary meaning of s 49, it would be erroneous to view a costs application within the meaning of s 49(1) as one where the exercise of discretion in relation to costs is that costs should follow the event unless there are special circumstances. If an application is a costs application within the meaning of s 49(1), the court must have regard to the factors raised under s 49(2) as set out above. The ordinary rule in the UCPR that costs follow the event is “subject to” s 49, as expressly provided in s 49(4).

11. The respondent submits that the present proceeding is not one to which s 49(1)(e) of the JRA is directed. It submits that the applicant did not raise the question of whether the decision was one to which the JRA applied. However, it does not seem to me that it is critical whether it is the applicant or the respondent that raises an issue that affects or may affect the public interest in addition to any personal right or interest of the relevant applicant.

12. The respondent further submits that the application was a proceeding in the applicant’s own personal interests. In the sense that the applicant sought judicial review of decisions to dismiss or no longer deal with his complaints, the applicant was arguably seeking to vindicate a “personal” right or interest. Nevertheless, s 49(2)(b) recognises that a personal right or interest is not a disqualifying factor if there is additionally an issue that affects or may affect the public interest, so nothing is to be gained by further consideration of what amounts to a personal interest in this context.

13. Lastly, relying on s 49(2)(c), the respondent submits that the applicant pleaded “extensive largely unmeritorious grounds”. It is true that the submissions at the hearing of the application to dismiss under s 48 of the JRA included a detailed consideration of the substance of a number of the grounds for judicial review raised by the originating application. However, it was not necessary to resolve those questions in order to decide the application under s 48. In those circumstances, it would not be appropriate to take them into account purely for the purposes of deciding the question of costs in the present case.

14. In my view, accordingly, it is appropriate to order that the applicant is to bear only the applicant’s costs of the proceeding.