SDA v Corporation of the Synod of the Diocese of Rockhampton

[2022] QCA 161

SUPREME COURT OF QUEENSLAND

CITATION:

SDA v Corporation of the Synod of the Diocese of Rockhampton & Anor [2022] QCA 161

PARTIES:

SDA
(appellant)
v
CORPORATION OF THE SYNOD OF THE DIOCESE OF ROCKHAMPTON
(first respondent)
STATE OF QUEENSLAND
(second respondent/not a party to the appeal)

FILE NO/S:

Appeal No 9955 of 2020
SC No 732 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal – Further Orders

ORIGINATING COURT:

Supreme Court at Rockhampton – [2020] QSC 253 (Crow J)

DELIVERED ON:

30 August 2022

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Fraser and Morrison JJA

ORDERS:

1.   Set aside the order as to costs made on 31 August 2020.

2.   The first respondent pay the appellant’s costs of and incidental to the application.

3.   The first respondent pay the appellant’s costs of and incidental to the appeal.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWER OF COURT – COSTS – where the appellant originally applied for orders requiring the first respondent to comply with its contended obligations to give information under s 27(1)(b)(i) of the Personal Injuries Proceedings Act 2002 (Qld) – where the learned primary judge held that the first respondent was not obliged to provide information in response to a request under s 27(1)(b)(i) which relates to prior similar incidents, unless it could be demonstrated that the prior incidents had a causative effect – where on appeal this Court held that the nature of the information about prior similar incidents, required to be given by a respondent to a claimant under s 27(1)(b)(i), is not confined to information about prior incidents that have a causative effect in relation to the incident alleged by a claimant, and that, on the evidence supplied to the court it could not be concluded there was no causative effect – where the appellant contends that the first respondent should pay the costs of the application and the appeal – where on the construction found by this Court the application at first instance should have been allowed, whether it is appropriate that that costs order be set aside and the first respondent ordered to pay the applicant’s costs of the application on the standard basis – whether as to the costs of the appeal, the same result should follow

SDA v Corporation of the Synod of the Diocese of Rockhampton & Anor[2021] QCA 172, related

COUNSEL:

G R Mullins and P E Nolan for the appellant
A M Arnold for the respondent

SOLICITORS:

Maurice Blackburn Lawyers for the appellant
RBG Lawyers for the respondent

1. FRASER JA:  I agree with the reasons for judgment of Morrison JA and the orders proposed by his Honour.

2. MORRISON JA:  On 20 August 2021 the court delivered its reasons in this appeal.  Subsequently orders were agreed by the parties disposing of the appeal, with the exception of costs.  Submissions have now been made on that issue.

3. The appellant originally applied for orders requiring the first respondent to comply with its contended obligations to give information under s 27(1)(b)(i) of the Personal Injuries Proceedings Act 2002 (Qld) (PIPA).  The issue concerned information about the complaints relating to Reverend M, the superintendent at the St George’s Home for Children during a particular period.

4. The learned primary judge held that the first respondent was not obliged to provide information in response to a request under s 27(1)(b)(i) which relates to prior similar incidents, unless it could be demonstrated that the prior incidents had a causative effect. His Honour also observed that it could not be considered that information received 25 years after the fact could have had any bearing on what the first respondent did or did not do at the time of the incident, nor could it be said to have put the first respondent on notice of the risk. His Honour concluded that there was a lack of causative effect between the information which was sought and the incident the subject of complaint, and therefore the information was not disclosable.[1]

   [1]Paragraphs [2]-[5] of the reasons of this court: SDA v Corporation of the Synod of the Diocese of Rockhampton & Anor [2021] QCA 172.

5. On appeal this Court held that the nature of the information about prior similar incidents, required to be given by a respondent to a claimant under s 27(1)(b)(i), is not confined to information about prior incidents that have a causative effect in relation to the incident alleged by a claimant, and that, on the evidence supplied to the court it could not be concluded there was no causative effect.[2]

   [2]Reasons of the court [5].

6. The appellant contends that the first respondent should pay the costs of the application and the appeal.  That submission is made on the simple basis that the information was sought and refused, and then pursued by application.  Whilst the application at first instance failed, that was reversed on appeal with the consequence that the appellant was largely successful.  Accordingly, it is contended that costs should follow the event.

7. The first respondent submits that there should be no order as to costs both of the application and the appeal.  That submission is made on the basis that:

   (a)the appellant was only partially successful on the appeal, it having been conceded in oral submissions by the appellant’s Counsel that the orders sought at first instance, and on appeal, were too wide;

   (b)on any view of s 27(1)(b) of PIPA the information was outside its ambit;

   (c)the ultimate order sought would have to be a narrowed one depending upon the view of this court as to proper construction of s 27(1)(b) of the Act; and

   (d)the orders made were narrowed from those sought.

8. Further, it is contended that such orders as to costs are appropriate given that neither party had the benefit of authority on the question of statutory interpretation of s 27(1)(b).

9. In my view, it is appropriate that costs follow the event.  Whilst it is true to say that the parties did not have the benefit of a court decision on the interpretation of s 27(1)(b), the respondent pursued a narrow construction which was ultimately rejected.  That narrow approach also resulted in the application being dismissed at first instance.  Given that on the construction found by this Court the application at first instance should have been allowed, it is appropriate that that costs order be set aside and the first respondent ordered to pay the applicant’s costs of the application on the standard basis.

10. As to the costs of the appeal, the same result should follow. The narrow approach to the construction of s 27(1)(b)(i) of PIPA which was advanced by the first respondent has failed. The stricture of that approach was reflected in the fact that the first respondent maintained that there were no documents to be provided, whereas on the proper construction of the section, that could not be maintained. Whilst it is true to say that the appellant sought categories of documents that were too wide in scope, nonetheless the appellant has been substantially successful on the issues on the appeal.

11. I propose the following orders:

    1.Set aside the order as to costs made on 31 August 2020.

    2.The first respondent pay the appellant’s costs of and incidental to the application.

    3.The first respondent pay the appellant’s costs of and incidental to the appeal.