Sargent v South East Queensland Electricity Board

[1999] QSC 72

IN THE SUPREME COURT

OF QUEENSLAND

No. 11627 of 1998

Brisbane

Before de Jersey CJ

[Sargent v South East Queensland Electricity Board & Anor]

BETWEEN:

JOHN G SARGENT

Applicant

AND:

SOUTH EAST QUEENSLAND ELECTRICITY BOARD

First Respondent

AND

POWERLINK

Second Respondent

JUDGMENT - de JERSEY CJ

Judgment delivered 7 April, 1999

In ordering, on 9 March 1999, dismissal of the applicant’s notice of motion filed on 2 March 1999, I reserved the question of costs because the extent of the Court’s costs jurisdiction under the Judicial Review Act 1991 was not adequately canvassed in argument before me. I agreed that the parties might make written submissions on the issue, and foreshadowed that I would determine the matter, if desired, on that written material.

I have since, by letter of 23 March 1999, received an application from Mr Sargent for an order that the respondents be ordered to pay his costs.  He refers to s.49 of the Act and asserts that this matter “involves an issue that affects the public interest and the personal right of the ... applicant”.  That picks up some of the language of s.49(2).  That subsection also obliges me to have regard to whether the proceeding had a reasonable basis.  For the reasons I comprehensively explained on dismissing the motion on 19 March, the application for judicial review had no reasonable basis whatever.  Adding to that circumstance the history of Mr Sargent’s attempts to secure a review of the subject decision, covered orally by me in giving that judgment, one could not possibly rightly order the respondents to pay his costs.

The respondents themselves seek an order for costs against Mr Sargent.  I have considered their submissions, and Mr Sargent’s three page typed response.

Section 49(4) clearly preserves the Court’s general discretion with relation to costs.  This is a case where justice and reason warrant ordering Mr Sargent to pay the respondents’ costs.  They seek a costs order on an indemnity basis.  I am satisfied that the circumstances are sufficiently special to warrant my making such an order.  In brief summary, this is the last in a series of challenges mounted by the applicant to the respondents’ conduct: notwithstanding that the issue of the jurisdiction of the Land Court was decided against the applicant by the Land Appeal Court on 1 August 1997 and the Court of Appeal on 26 May 1998, the respondents have been required to respond to no fewer than five applications dealing with substantially the same subject matter: they are the application to the High Court for special leave to appeal and four chamber applications including this one.  I covered this aspect in more detail when giving judgment on 19 March, and it is I think undeniable that the respondents have, in these circumstances, established a compelling case for the awarding of indemnity costs.

I therefore order that the applicant, John G Sargent pay the respondents’ costs of and incidental to these proceedings, including any reserved costs, such costs to be taxed on a solicitor and own client basis.