Parker v QFES Commissioner (No 2)

[2020] QSC 371

SUPREME COURT OF QUEENSLAND

CITATION:

Parker v QFES Commissioner & Anor (No 2) [2020] QSC 371

PARTIES:

NEIL PARKER

(plaintiff)
v
COMMISSIONER, QUEENSLAND FIRE AND EMERGENCY SERVICES
(first defendant)
MIKE WASSING
(second defendant)

FILE NO/S:

SC No 48 of 2019

DIVISION:

Trial Division

PROCEEDING:

Claim

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

11 December 2020

DELIVERED AT:

Cairns

HEARING DATE:

Written submissions received 12 November 2020.

JUDGE:

Henry J

ORDER:

1.   No order as to costs.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – DEPRIVING SUCCESSFUL PARTY OF COSTS – CONDUCT OF PARTY OR PROCEEDING – GENERALLY – where the plaintiff began proceedings by way of claim and statement of claim seeking injunctive relief to restrain a disciplinary process being undertaken by the defendants – where the plaintiff sought such relief on the pleaded basis that the defendants had misused confidential information and or had denied the plaintiff natural justice by refusing him access to information that might have been used to defend himself – where these claims were not successful – where the plaintiff did enjoy some success on an argument raised during the trial but which was not pleaded – where the court declared that the plaintiff had been denied natural justice in relation to the decision to suspend him during the disciplinary process – whether the plaintiff should be deprived of his costs despite his partial success

Uniform Civil Procedure Rules 1999 (Qld), r 681, r 684, r 687

Australand Corporation (QLD) Pty Ltd v Johnson & Ors [2007] QSC 128, cited
Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 3) (1998) 30 ACSR 20, cited
Parker v Commissioner, Fire and Emergency Services [2020] QSC 370, related

COUNSEL:

M Jonsson QC for the plaintiff

A Scott for the defendants

SOLICITORS:

Peters Bosel Lawyers for the plaintiff

G R Cooper, Crown Solicitor for the defendants

1. Mr Parker was suspended from his duties within Queensland Fire and Emergency Service (“QFES”).  He claimed for injunctive relief against the QFES Commissioner and the Commissioner’s delegate Mr Wassing, to prevent them from progressing disciplinary action against him. I recently concluded the trial of that claim..  It only remains to determine costs. 

2. The general rule as to costs, enshrined in r 681 Uniform Civil Procedure Rules1999 (Qld), is that costs “are in the discretion of the court but follow the event, unless the court orders otherwise”. The outcome of the trial was that I declined the injunctive relief sought but declared Mr Wassing failed to ensure Mr Parker’s progressive suspensions were effected in accordance with the principles of natural justice as required by s 33(1) Fire and Emergency Services Act 1990 (Qld).[1] 

   [1]See Parker v Commissioner, Fire and Emergency Services [2020] QSC 370.

3. Mr Parker submits that although he did not achieve the injunctive relief sought, he did, in the event, succeed in securing a form of relief in his favour, so costs should follow the event.  The defendants acknowledge Mr Parker did have some success but emphasise they enjoyed complete success against his attempt to restrain their progression of disciplinary action, so there should be no order as to costs. 

4. Neither party invites the court to award costs limited to a particular question in the proceeding[2]  or award a specific percentage of assessed costs in respect of specific issues litigated in the course of proceedings.[3]  The form of order sought by the respondent is more reflective of the not uncommon approach of an apportionment of costs as between parties who have enjoyed mixed success.  As the defendants rightly concede, the plaintiff has enjoyed success.[4]  This is presumptively so even if the party has failed on one alterative argument but succeeded on another.[5]  Here, however, the defendants complain the argument Mr Parker succeeded on was raised so late in the litigation – during argument at trial – that Mr Parker should not be entitled to his costs. Here the defendants’ position is, in effect, that the parties have enjoyed such a comparably equal level of success as to justify an even apportionment of costs, achievable by the pragmatic measure of each party having to bear their own costs. 

   [2]Uniform Civil Procedure Rules 1999 (Qld) r 684.

   [3]Ibid, r 687(2)(a).

   [4]Defendant’s Submissions in Relation to Costs, [2].

   [5]Australand Corporation (QLD) Pty Ltd v Johnson & Ors [2007] QSC 128, [17].

5. Mr Parker’s case as originally pleaded unequivocally contained two alternative limbs: first, the defendants were recipients of confidential information which they improperly used to further the investigation of Mr Parker;[6] second, that by failing to provide Mr Parker with unconditional access to emails, witnesses and the documents which constituted a referral to the Crime and Corruption Commission the defendants “are conducting a disciplinary process … in breach of the rules of natural justice…”.[7]  Mr Parker did not succeed in establishing either of those contentions.

   [6]See Amended Statement of Claim, filed 2 April 2020, [5], [6], [7], [8].

   [7]Amended Statement of Claim, filed 2 April 2020, [12] which refers to conduct pleaded at [6], [11], [11A]. 

6. The content of the pleadings to some extent supported the argument which ultimately prevailed: that there was a failure to afford natural justice by not hearing Mr Parker after the decision to suspend him on 3 September 2020 and thereafter the failures to hear from him before the subsequent extensions of that suspension.  That argument was not clearly raised by the pleadings, but of course the purpose of pleadings is to provide notice of the material facts which constitute a party’s case – not the legal arguments to be developed.

7. Mr Parker’s counsel argues on a broad view of the pleadings that from the start his claim was based on a “breach of procedural fairness, coupled with a failure by the second defendant – as decision maker – to form the requisite state of satisfaction”.  That is true enough.  However, the pleadings apparent purpose was in support of the apparent purpose of the claimed relief, which was for orders:

   “1.  An injunction to restrain the defendants and each of them from and against taking or progressing any disciplinary action against the plaintiff, under and within the meaning of the Fire and Emergency Services Act 1990, by use or reliance upon:

   (a)A notice to show cause contained in the second defendant’s letter to the plaintiff dated 31 January, 2019;

   (b)Confidential information sourced from certain recorded discussions involving the plaintiff and within the possession or control of the second defendant; and

   2.   Further, or alternatively, an injunction to restrain the defendants and each of them from and against taking or progressing any disciplinary action against the plaintiff, under and within the meaning of the Fire and Emergency Services Act 1990, in breach of natural justice and contrary to section 33(1) of the Fire and Emergency Services Act 1990.”

8. While those orders made reference to s 33(1) the apparent purpose of the claim and pleaded case was to restrain the progression of disciplinary action and Mr Parker’s action failed in that purpose. While issues on which a party succeeds or fails should not be examined with too great a degree of precision,[8] the suspension process, to which my eventual orders went, relates to but is not the same as the process sought to be restrained, namely the disciplinary process.  Considered from the perspective of the defendants’ resistance to the relief claimed and the purpose for which it was claimed, they had a complete victory. 

   [8]See Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 3) (1998) 30 ACSR 20, 22.

9. While s 33(1) attracted reference in the claim and pleaded case the ultimate form of relief deriving from it only materialised as under potential contemplation as the trial progressed. In the end result I did not see merit in the natural justice complaint in the sense it related to the use of confidential information or denial of access to information but did conclude the failure to comply with the natural justice requirement of s 33(1) warranted declarations regarding the suspensions.

10. The upshot is that the defendants succeeded in resisting the relief sought, indeed any relief delivering the purpose of the relief sought.  Contrary to the submission of Mr Parker’s counsel, this is not a case in which declarations were made in remedial preference to injunctions in order to meet the same purpose.[9]  Mr Parker succeeded in gaining declaratory relief which achieved a different purpose than the purpose of the injunctive relief his action had sought.  It was relief which arose only incidentally from his action’s true purpose.  The “event” thus achieved by Mr Parker is at best for him no more extensive than the “event” enjoyed by the defendants.  In those circumstances I readily conclude the appropriate costs outcome is, as reasonably urged by the defendants, that there should be no order as to costs.

    [9]Plantiff’s Submissions as to Costs, [10].

11. My order is:

    1.   No order as to costs.