Armitage v Parole Board Queensland (No 2) [2023] QSC 236

SUPREME COURT OF QUEENSLAND CITATION: PARTIES: FILE NO/S: DIVISION: Armitage v Parole Board Queensland (No 2) [2023] QSC 236 MATTHEW LESLIE ARMITAGE (applicant) v PAROLE BOARD QUEENSLAND (respondent) BS2380/23 Trial division PROCEEDING: Judicial review application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 25 October 2023 DELIVERED AT: Brisbane HEARING DATE: On the papers JUDGE: Hindman J ORDER: The applicant is to pay the respondent’s costs of the application on the standard basis CATCHWORDS: PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – where applicant was unsuccessful in his application for judicial review – whether the parties should bear their own costs Judicial Review Act 1991 (Qld), s 49 Anghel v Minister for Transport (No 2) [1995] 2 Qd R 454 Witthahn v Wakefield, (Chief Executive of Hospital and Health Services and Director-General of Queensland Health) [2022] QSC 095 COUNSEL: A Scott KC and D Caruana for the applicant D Keane KC and S Robb for the respondent SOLICITORS: Jahnke Lawyers for the applicant Parole Board Qld Legal Services for the respondent Introduction [1] The applicant’s application for judicial review was dismissed on 22 September 2023. The successful respondent seeks its costs of the proceeding against the applicant. The -- 1 of 4 -- applicant applies for orders pursuant to ss. 49(1)(a) and (e) of the Judicial Review Act 1991 (Qld) (JRA) that the parties bear their own costs of the proceeding. [2] In considering the applicant’s costs application, the Court required to have regard to, relevantly here (s. 49(2) JRA): (a) the financial resources of the applicant (s. 49(2)(a)(i)); (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 applicant (s. 49(2)(b)); (c) whether the proceeding discloses a reasonable basis for the review application (s. 49(2)(c)), and may have regard to: (d) any conduct of the applicant (s. 49(3) JRA1); (e) anything else the Court considers relevant.2 [3] Otherwise, subject to the JRA, the rules of court apply (s. 49(4) JRA). Whilst the rules of court provide that costs are in the discretion of the court, r. 681 UCPR provides that in the usual case costs follow the event. Financial resources of the applicant [4] The applicant’s financial resources are dealt with in an affidavit of Jahnke filed 27 February 2023. I accept the applicant has limited financial means. Public interest [5] The applicant submits that the application involved an issue that affects the public interest, namely “a question of interpretation going to the jurisdiction of the respondent to make a no cooperation declaration under [the no body-no parole] provisions.”3 Further, there was no existing case law dealing with the particular statutory interpretation point, in this jurisdiction or in respect of other like provisions. I accept that the 1 Although strictly applying after an order is already made under the section, it would seem implicit that if the conduct of an applicant can result in the revocation, variation or suspension of an order under the section that such conduct might also influence whether an order is made under the section in the first place. 2 Because s. 49(2) JRA does not exhaustively list the factors to be considered. 3 Applicant’s submissions at [2]. -- 2 of 4 -- proceeding involved an issue that affects the public interest. The decision clarifies when the no body-no parole provisions apply. Reasonable basis for application [6] The applicant submits that the application had a reasonable basis.4 The applicant says that the interpretation of “reasonable basis” reflects the idea that it is “undesirable that responsible citizens with a reasonable grievance who wish to challenge government action should only be able to do so at the risk of paying costs to the Government if they fail”.5 [7] Whilst the applicant ultimately failed in his application, I do not consider that there was no reasonable basis for the application. The applicant’s application was arguable; the bar for an application to be arguable is not high. [8] Therefore I conclude that the application was reasonable, but note that reasonableness can be assessed on a spectrum. Here, for the reasons given in the substantive decision, I consider the applicant’s application was only just arguable and properly described as somewhat ambitious or speculative. The construction contended for by the applicant was not consistent with the statutory purposes, and providing cooperation should not have been onerous for the applicant. The proceeding had the sense of the applicant attempting to avoid providing the cooperation required by the no body-no parole provisions by employing linguistic gymnastics. The respondent’s decision that was subject to review was both clear and sound. Applicant’s conduct and any other matters [9] There is nothing else about the applicant’s conduct of the proceeding or any other matter that I consider is relevant to deciding costs. [10] I do not consider the fact that the applicant sought costs in his filed originating application is a relevant factor in this case. Nor is the fact that the applicant waited until 4 Applicant’s submissions at [2]. 5 Anghel v Minister for Transport (No 2) [1995] 2 Qd R 454 at 460 per McPherson J and Witthahn v Wakefield, (Chief Executive of Hospital and Health Services and Director-General of Queensland Health) [2022] QSC 095. -- 3 of 4 -- after the substantive application was decided to make his costs application under the JRA. Outcome [11] That the factors in s. 49(2) JRA may be satisfied does not automatically mean that orders under ss. 49(1)(a) and (e) JRA must be made – they are only factors for consideration. [12] In my view the applicant’s proceeding is not one where the Court should make orders that each party bears their own costs. The usual position about costs should apply. Whilst I have considered all of the factors mentioned above, I am particularly influenced by the matters I have expressed at [8] above in reaching that conclusion. [13] The applicant is to pay the respondent’s costs of the application on the standard basis. -- 4 of 4 --