Smyth v State of Qld - [2005] QSC 193

SUPREME COURT OF QUEENSLAND

CITATION:

Smyth v State of Qld & Ors [2005] QSC 193

PARTIES:

STEPHEN ALLAN JOHN SMYTH
(applicant)
v
STATE OF QUEENSLAND
(first respondent)
and
NEWLANDS COAL PTY LTD
(second respondent)
LINDSAY RICHARDSON
(third respondent)

FILE NO:

BS5069 of 2005

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

14 July 2005

DELIVERED AT:

Brisbane

HEARING DATE:

Written submissions on costs

JUDGE:

Wilson J

ORDER:

That the applicant pay the costs of the first respondent and the costs of the second and third respondents of and incidental to the application to be assessed on the standard basis.

CATCHWORDS:

PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – where there are three respondents to the application – where the second and third respondents intervened – where the second and third respondents were separately represented - where the substantive application was dismissed – where the second and third respondents learned of the application in an informal way and on very short notice – where it was reasonable for the second and third respondents to want to remain at arm’s length from the first respondent - whether two sets of costs should be allowed

Coal Mining Safety and Health Act (Qld) 1999, s 255(5)
Uniform Civil Procedure Rules (Qld) 1999, r 69

Statham v Shephard No 2 (1974) 23 FLR 244, applied

COUNSEL:

MD Hinson SC and JW Merrell for the applicant
PJ Flanagan SC and JM Horton for the first respondent

SS Couper QC and KE Downes for the second and third respondents

SOLICITORS:

Hall Payne for the applicant
Crown Solicitor for the first respondent

Sparke Helmore for the second and third respondents

Wilson J: On 5 July 2005 I dismissed an application for declarations as to the application of the Coal Mining Safety and Health Act 1999. The first respondent and the second and third respondents seek orders for payment of their costs by the applicant, but the applicant contends that only one set of costs should be allowed.

The proceeding was commenced by the applicant’s filing an originating application on 22 June 2005, returnable on 30 June 2005. The first respondent (the State of Queensland) was the only respondent to the application.

On Tuesday 28 June 2005 the Chief Inspector of Mines informed a legal officer in the employ of Xstrata Coal Australia Pty Ltd (the operator of the joint venture which conducts mining operations at Newlands) that a matter concerning the fatality on 8 July 2004 was to come before the Court on Thursday morning (30 June 2005). As a result the second and third respondents instructed solicitors, who made a number of inquiries and ultimately received copies of the court documents from the Crown Solicitor’s office late that afternoon. At about 6.00 pm that evening the solicitor handling the matter in the Crown Solicitor’s office informed the solicitors for the second and third respondents that the State of Queensland would be opposing the application, but that he was not sure whether they would…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] QSC 193
Decision Date: 14 July 2005

CaseChat Overview and Summary

In the matter of Smyth v State of Qld, the court was tasked with determining the appropriate allocation of costs in a situation where three respondents were involved in the proceedings, with the second and third respondents having intervened and being separately represented. The substantive application had been dismissed, and the issue at hand was whether two sets of costs should be awarded, considering the second and third respondents' informal and short notice learning of the application and their desire to remain distant from the first respondent. The court had to navigate the general rule that costs follow the event, assessing the circumstances of each respondent's involvement.

The legal issues before the court centred on the equitable allocation of costs in a complex procedural context. The court had to consider the nature of the intervention by the second and third respondents, their separate representation, and the informal and expedited manner in which they became aware of the application. Additionally, the court needed to weigh the reasonableness of the second and third respondents' desire to maintain distance from the first respondent in the context of the costs assessment.

In delivering the judgment, the court recognised the procedural complexities and the equitable considerations involved. It concluded that while the second and third respondents' intervention and the manner in which they became involved warranted separate consideration, the overarching principle that costs follow the event necessitated a unified approach to cost assessment. The court found it appropriate to assess the costs of the first respondent and the costs of the second and third respondents together on the standard basis, acknowledging the unique circumstances but ultimately adhering to the principle of costs following the event.

The final order of the court was that the applicant, Smyth, was to pay the costs of the first respondent and the costs of the second and third respondents of and incidental to the application, with the assessment to be conducted on the standard basis. This order reflected the court's balanced approach, recognising the procedural intricacies while upholding the principle of costs following the event.

Orders

Orders of the court

That the applicant pay the costs of the first respondent and the costs of the second and third respondents of and incidental to the application to be assessed on the standard basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Smyth v State of Qld & Ors [2005] QSC 193
PARTIES:	STEPHEN ALLAN JOHN SMYTH (applicant) v STATE OF QUEENSLAND (first respondent) and NEWLANDS COAL PTY LTD (second respondent) LINDSAY RICHARDSON (third respondent)
FILE NO:	BS5069 of 2005
DIVISION:	Trial Division
PROCEEDING:	Application
DELIVERED ON:	14 July 2005
DELIVERED AT:	Brisbane
HEARING DATE:	Written submissions on costs
JUDGE:	Wilson J
ORDER:	That the applicant pay the costs of the first respondent and the costs of the second and third respondents of and incidental to the application to be assessed on the standard basis.
CATCHWORDS:	PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – where there are three respondents to the application – where the second and third respondents intervened – where the second and third respondents were separately represented - where the substantive application was dismissed – where the second and third respondents learned of the application in an informal way and on very short notice – where it was reasonable for the second and third respondents to want to remain at arm’s length from the first respondent - whether two sets of costs should be allowed Coal Mining Safety and Health Act (Qld) 1999, s 255(5) Uniform Civil Procedure Rules (Qld) 1999, r 69 Statham v Shephard No 2 (1974) 23 FLR 244, applied
COUNSEL:	MD Hinson SC and JW Merrell for the applicant PJ Flanagan SC and JM Horton for the first respondent SS Couper QC and KE Downes for the second and third respondents
SOLICITORS:	Hall Payne for the applicant Crown Solicitor for the first respondent Sparke Helmore for the second and third respondents