Orr v Director of Proceedings on Behalf of the Health Ombudsman [No 2]

[2024] QCA 106

SUPREME COURT OF QUEENSLAND

CITATION:

Orr v Director of Proceedings on Behalf of the Health Ombudsman [No 2] [2024] QCA 106

PARTIES:

ANDREW JAMIE ORR
(appellant)
v
DIRECTOR OF PROCEEDINGS ON BEHALF OF THE HEALTH OMBUDSMAN
(respondent)

FILE NO/S:

Appeal No 3891 of 2023
QCAT No 222 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal – Further Order

ORIGINATING COURT:

Queensland Civil and Administrative Tribunal – [2023] QCAT 61 (Judicial Member Reid)

DELIVERED ON:

4 June 2024

DELIVERED AT:

Brisbane

HEARING DATE:

21 February 2024

JUDGES:

Mullins P and Bond JA and Fraser AJA

ORDER:

The appellant pay the respondent’s costs of the appeal.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – where the appellant was wholly unsuccessful in his appeal – where the appellant submits on various bases that judicial discretion should be exercised in ordering that the each party should bear their own costs – whether there was any unlawful conduct, novel point of law of public importance, issue of significance, or unfairness that would justify an order that each party bear their own costs

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100
Uniform Civil Procedure Rules 1999 (Qld), r 681

Courtney v Chalfen[2021] QCA 25, cited
Orr v Director of Proceedings on Behalf of the Health Ombudsman [2024] QCA 67, cited
Speets Investment Pty Ltd v Bencol Pty Ltd(No 2)[2021] QCA 39, cited
Villan v The Body Corporate for The Winston (Cairns) Community Title Scheme 37263 [No 2][2024] QCA 54, cited

COUNSEL:

B K Nolan for the appellant
C D Templeton for the respondent

SOLICITORS:

Alex Rashidi Lawyers for the appellant
Turks Legal for the respondent

1. THE COURT:  The parties have exchanged submissions about costs pursuant to leave granted by the Court: Orr v Director of Proceedings on Behalf of the Health Ombudsman [2024] QCA 67. The appellant submits that the appropriate order is that each party should bear their own costs of the appeal. The respondent submits that the appellant should pay the respondent’s costs of the appeal.

2. Under Rule 681 of the Uniform Civil Procedure Rules 1999, the costs of the appeal are in the discretion of the Court but follow the event unless the Court orders otherwise.  As the appellant submits, the discretion must be exercised judicially and consistently with the purpose of the power, but costs will generally follow the event unless there are special or exceptional circumstances which warrant depriving a successful party of its costs: see Courtney v Chalfen [2021] QCA 25; Speets Investment Pty Ltd v Bencol Pty Ltd(No 2) [2021] QCA 39 and Villan v The Body Corporate for The Winston (Cairns) Community Title Scheme 37263 [No 2] [2024] QCA 54.

3. The appellant, who was wholly unsuccessful in his appeal, relies upon five submissions as justification for the costs order he seeks. One of the appellant’s submissions depends upon his contentions that there was “unlawful conduct informing the appeal” and the appeal was “a legitimate attempt by the appellant to hold the respondent accountable for such conduct”.  There has been no finding that there was any unlawful conduct.

4. The appellant submits that the judgment determined the construction of an important statutory provision and resolved a novel point of law of public importance.  It is submitted that the outcome upon that issue “qualified the success of the appellant on his appeal and pertained to public rights and obligations, rather than his individual private rights”.  Upon the face of the proceedings, however, the appeal was pursued to advance the personal interest of the appellant in defeating, or perhaps delaying, the resolution of the disciplinary proceedings against the appellant referred by the respondent to the Queensland Civil and Administrative Tribunal.

5. The appellant submits that the appeal raised an issue of significance about the administration of disciplinary actions against health professionals.  That does not justify a departure from the usual order that costs followed the event.  The appellant also relies upon the fact that in the Tribunal the usual order is that each party bears that party’s own costs (Queensland Civil and Administrative Tribunal Act 2009, s 100). If that fact has any present relevance at all, it is not a circumstance which warrants depriving the successful respondent of costs.

6. Finally, the appellant submits that for the reasons articulated in the submissions already discussed, an order for costs against the appellant would work an unfairness which is inconsistent with the compensatory principle upon which costs are ordered.  Why that might be so is not explained.  In any event, the rejection of the other submissions inevitably requires the rejection of this submission.

7. The appropriate order is that the appellant pay the respondent’s costs of the appeal.