Drage v Gold Coast Hospital and Health Service [2025] QSC 57

1 SUPREME COURT OF QUEENSLAND CITATION: Drage v Gold Coast Hospital and Health Service [2025] QSC 57 PARTIES: STEVEN GEOFFREY DRAGE (applicant) v GOLD COAST HOSPITAL AND HEALTH SERVICE (first respondent) AND STATE OF QUEENSLAND (QUEENSLAND HEALTH) (second respondent) FILE NO: BS 4176/24 DIVISION: Trial PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 26 March 2025 DELIVERED AT: Brisbane HEARING DATE: 12 December 2024, 13 December 2024, 28 January 2025, with further written submissions on 28 February 2025 and 11 March 2025 JUDGE: Freeburn J ORDERS: Each party to the review bear their own costs pursuant to s 49(1)(e) of the Judicial Review Act 1991 (Qld). CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – DEPRIVING SUCCESSFUL PARTY OF COSTS – NATURE OF PROCEEDING – PUBLIC INTEREST OR DUTY – where the applicant’s application for judicial review was dismissed – where the respondents argue it should receive its costs pursuant to the general rule that costs follow the event – where the applicant submits there are special or exceptional circumstanced warranting a departure from the general rule – where the applicant argues each party bear its own costs of the proceedings because the proceeding involves an issue of public interest – whether the applicant should pay the respondents’ costs of the proceedings Judicial Review Act 1991 (Qld), s 49 Uniform Civil Procedure Rules 1999 (Qld), r 681 -- 1 of 6 -- 2 Cairns Port Authority v Albietz [1995] 2 Qd 470, cited Kent v Cavanagh (1973) 1 ACTR 43, cited Oshlack v Richmond River Council (1998) 193 CLR 72, cited Sharples v Council of the Queensland Law Society [2000] QSC 392, cited Whitsunday Residents Against Dumping Ltd v Chief Executive, Department of Environment and Heritage Protection [2017] QSC 121, cited COUNSEL: The applicant, assisted by H Stancliffe, appeared on his own behalf C J Murdoch KC, with M J Brooks, for the respondent SOLICITORS: The applicant, assisted by H Stancliffe, appeared on his own behalf MinterEllison for the respondent [1] On February 2025, I dismissed Mr Drage’s application and said I would hear the parties on costs.1 [2] In his substantive submissions, Mr Drage sought an order that he bear his own costs of the review regardless of the outcome. The respondents sought an order that Mr Drage pay their costs in the event that they were successful. Both parties have filed and served further submissions on costs. Section 49 [3] Section 49(1)(e) of the Judicial Review Act 1991(the JR Act) gives the court a discretion to order that a party to a review application bear only that party’s own costs of the proceeding, regardless of the outcome of the proceeding. [4] Section 49(2) provides that: “(2) In considering the costs application, the court is to have regard to— (a) the financial resources of— (i) the relevant applicant; or (ii) any person associated with the relevant applicant who has an interest in the outcome of the proceeding; and (b) whether the proceeding involves an issue that affects, or may affect, the public interest, in addition to any personal right or interest of the relevant applicant; and 1 Drage v Gold Coast Hospital and Health Service [2025] QSC 22. -- 2 of 6 -- 3 (c) if the relevant applicant is a person mentioned in subsection (1)(a)— whether the proceeding discloses a reasonable basis for the review application; and (d) if the relevant applicant is a person mentioned in subsection (1)(b) or (c)—whether the case in the review application of the relevant applicant can be supported on a reasonable basis.” [5] Subject to section 49, the rules of the court made in relation to the awarding of costs also apply to review applications.2 That leads to a rather uneasy marriage between the discretion in section 49 of the JR Act and the discretion in the Uniform Civil Procedure Rules 1999 (the ‘UCPR’). [6] On the one hand, rule 681 of the UCPR specifies the general rule that costs are in the discretion of the court but follow the event. The practical and ordinary effect of this general rule is that the unsuccessful party to a proceeding will be ordered to pay the costs of the successful party. This is commonly referred to as the ‘costs indemnity rule’ because the unsuccessful party provides an indemnity to the successful party for the latter’s costs. [7] On the other hand, under section 49 of the JR Act, the court is to exercise its costs discretion having regard to the financial resources of the applicant, any public interest and whether the application had a reasonable basis. [8] The rationale for modifying the general rule that costs follow the event for judicial review applications was explained by Thomas J in Cairns Port Authority v Albietz:3 “Too rigid an application of the ‘loser pays all’ approach might adversely impact upon the effectiveness of judicial review as a remedy. Bearing in mind the nature of litigation, the extent to which there is a public aspect in the proceedings, and the potential oppression of multiple costs orders, it will often be the case that limitation of costs which an unsuccessful party has to pay will be an appropriate exercise of the very wide discretion entrusted to the courts. Such an approach is by no means new in cases where matters affecting the public interest are ventilated (Liversidge v Anderson [1942] AC 206, 283; R v Commissioner of Police, Ex parte Blackburn (No. 3) (CA) [1973] QB 241, 265).” [9] Mr Drage also referred the court to the reasons of Fox J in Kent v Cavanagh where the plaintiffs took proceedings to prevent the erection of a communications tower on Black Mountain in Canberra. There, His Honour said: “In the present case the plaintiffs have succeeded on one point and have brought to notice a serious defect in compliance with statutory procedures. But I am to some extent influenced by broader considerations. It seems to me undesirable that responsible citizens with a reasonable grievance who wish to challenge Government action should only be able to do so at risk of paying costs to the Government if they fail. They find themselves opposed to parties who are not 2 Section 49(4) of the Judicial Review Act 1991. 3 [1995] 2 Qd R 470 at 475. -- 3 of 6 -- 4 personally at risk as to costs and have available to them almost unlimited public funds. The inhibiting effect of the risk of paying costs is excessive and not in the public interest. Once, not so long ago, litigation was more of a luxury than it now is and for the most part only wealthy people could engage in it. To them was usually left any action necessary to vindicate rights of the public. This is not now regarded as an acceptable situation. The courts must be, in practice, and not simply in theory, available to all. In the present case the relators comprise prominent citizens of Canberra. They have obviously been motivated by deep concern for the welfare of the community. Some are very distinguished Australians. They have strong feelings, indeed strong convictions, about the consequences of proceeding with the proposal to build the tower on Black Mountain. In answer I have to tell them that this is a matter of Government administration and at this stage I do not see that what is proposed is unlawful. I am satisfied that no order for costs should be made.”4 [10] Those cases illustrate the evident purpose of section 49, which is to ensure that in review applications the costs discretion is exercised having regard to the extent to which there is a public aspect to the proceedings, and the potentially inhibiting effect of costs orders in favour of a government against a citizen. The court’s discretion should be exercised so as to ensure that the risk of adverse costs orders does not deter meritorious applications under the Act.5 But the principle cannot be taken too far. As McHugh J explained in Oshlack v Richmond River Council: “litigants espousing the public interest are not thereby granted an immunity from costs or a free kick in litigation”.6 [11] Thus, the discretion to make a costs order under section 49(1)(e) will be exercised where there is a clear or compelling public interest. That was the case in Foster v Shaddock.7 That case contrasts with Whitsunday Residents Against Dumping Ltd v Chief Executive, Department of Environment and Heritage Protection where Daubney J found that, whilst there was an element of public interest, that public interest was insufficient to warrant a departure from the costs indemnity rule.8 [12] In Sharples v Council of the Queensland Law Society Incorporated, Mullins J explained that something more than a mere element of public interest may be required: “There is always a public interest in seeing that statutory obligations of a statutory body are fulfilled and that the personal rights of any party affected by the performance of that statutory obligation are observed. By the very nature of what is a decision to which the Act applies, every review application will involve an element of public interest. It is apparent from the observations made in the judgements in the Court of Appeal to which I have referred relating to section 49 of the Act there will usually be some broader public interest involved in the particular application to justify a special costs order than the usual public 4 (1973) 1 ACTR 43 at 55. 5 See the useful discussion of this topic by Bedford, The Winner Takes It All, (2018) Bond Law Review, vol 30(1) 119 at 129. 6 Oshlack v Richmond River Council (1998) 193 CLR 72 at [134]. McHugh J dissented in that case. 7 [2016] QCA 163 at [19]. 8 [ 2017] QSC 121. -- 4 of 6 -- 5 interest which must be present in every application from the mere fact that the Act applies to the decision under review.”9 [13] And so there is something of a threshold requiring a broader public interest rather than just the usual public interest that would usually be involved in a review application, but the discretion is not confined except to the extent that the court is required to consider the factors relevant to the exercise of the discretion. The Factors Relevant to the Discretion - Section 49 [14] The public interest in this case has two very different facets. On one view, the impact of the public health measures taken by the hospital service and the government during the COVID-19 pandemic directly affected the individual rights of citizens. Employees of the hospital service were required to be vaccinated. That mandatory interference in the rights of citizens was based on an assessment made for the common good, but the exceptions to the policy recognised the need to accommodate each employees’ human rights. However, Mr Drage had his own personal reasons for refusing to be vaccinated.10 That does not mean that the judicial review did not have a relevant or broader public interest. It merely means that Mr Drage can be regarded as pursuing his own personal objections to vaccination, in circumstances where other citizens may also have had their own personal interest or reasons in resisting similar steps of government. [15] At least one of the important considerations in the substantive decision here was whether the hospital service and the government had undertaken a proper weighing of the interference with their employees’ human rights, here the right to practice one’s religion, as against the increased risks to patients and others if staff were not vaccinated. The limits on a human right are required to be reasonable and justifiable. Here, the view the court took was that it was reasonable and justifiable for the hospital and Queensland Health to take the precaution of having hospital staff vaccinated. That step was appropriate to reduce the risks to patients, staff and the community.11 [16] As it happens, the evidence was that very few relevant hospital employees objected to vaccination. But, again, that does not mean that the issue was not a matter of public interest or broader public interest.12 In my view, there was a broad public interest that went beyond Mr Drage’s own personal interest. [17] Section 49 also requires that the court take into account Mr Drage’s financial resources. He does not directly give an account of his resources. And, as the respondents point out, he appears to be an active participant in his wife’s business. He has not explained his involvement. However, Mr Drage’s stance has not been without cost. His employment was terminated as a result of his objection to vaccination. [18] Certainly, Mr Drage’s judicial review application was arguable. In the language of s 49 of the JR Act, the application had a reasonable basis. The respondents conceded that. 9 [2000] QSC 392 at [30]. 10 See, in particular, the discussion in Drage v Gold Coast Hospital and Health Service [2025] QSC 22 at [110]. 11 See [2025] QSC 22 at [156]. 12 The question of what is in the public interest has been debated at least since the dissenting judgment of McHugh J in Oshlack v Richmond River Council (1998) 193 CLR 72. -- 5 of 6 -- 6 However, the respondents always maintained that the application did not have merit and that proved to be the case. The Factors Relevant to the Discretion – the UCPR [19] Under the UCPR, the order usually would be that Mr Drage, as the unsuccessful party, should pay the respondents’ costs. The question is whether the public interest aspect, discussed above, is sufficient to displace that usual rule. [20] In my view, the legislature has attached some importance to the three factors set out in section 49(2). Two of those factors, namely public interest and a reasonable or arguable basis for the application, are made out. [21] The rationale for section 49 is important. Citizens ought not be discouraged from bringing their disputes with government to court by the threat of an adverse costs order. Obviously, there are limits to the application of that rationale. Here Mr Drage’s challenge to the actions of the respondents did not succeed. In his challenge he relied on some rather bizarre material. But, in the context of a pandemic, where there was a mandatory requirement that employees be vaccinated, there was a broad public interest in Mr Drage litigating what was an arguable case. Certainly, his case was not dismissed in a peremptory way. [22] The respondents pointed out that Mr Drage commenced proceedings in the Industrial Relations Court and that those proceedings were well advanced before a decision was made by Mr Drage to bring this review application. That said, the Industrial Relations Court is essentially a ‘no costs’ jurisdiction. In any event, much of the work done in that court was used in this court. Conclusion [23] For those reasons, the order will be that each party bear their own costs. -- 6 of 6 --