Aurizon Network Pty Ltd v Queensland Competition Authority & Anor (No 2) [2023] QSC 210

SUPREME COURT OF QUEENSLAND CITATION: Aurizon Network Pty Ltd v Queensland Competition Authority & Anor (No 2) [2023] QSC 210 PARTIES: AURIZON NETWORK PTY LTD ACN 132 181 116 (applicant) v QUEENSLAND COMPETITION AUTHORITY (first respondent) QUEENSLAND RESOURCES COUNCIL LTD ACN 050 486 952 (second respondent) FILE NO/S: SC No 837 of 2023 DIVISION: Trial Division PROCEEDING: Application as to costs ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 15 September 2023 DELIVERED AT: Brisbane HEARING DATE: Heard on the papers. Applicant’s written submissions filed 7 August 2023; first respondent’s written submissions filed 11 August 2023; second respondent’s written submissions filed 11 August 2023. JUDGE: Kelly J ORDER: 1. The applicant pay the respondents’ costs of and incidental to the originating application filed 20 January 2023 to be assessed on the standard basis. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW EVENT – COSTS OF AND INCIDENTAL TO PROCEEDING – where the applicant filed an originating applicating seeking declaratory relief concerned with the construction of an access undertaking – where the originating application was dismissed – where the parties provided written submissions on costs – where the applicant accepts that it should pay the second respondent’s costs – where the applicant contends that there should be a departure from the usual rule that costs follow the event in respect of the first respondent’s costs – where the applicant contends that the extent of the first respondent’s participation in the proceeding was unnecessary and inappropriate – where the applicant contends that the first respondent should bear its own costs in -- 1 of 3 -- 2 the proceeding or that the applicant should be ordered to pay only a small proportion of the first respondent’s costs – whether the applicant should pay the respondents’ costs of and incidental to the originating application to be assessed on the standard basis Aurizon Network Pty Ltd v Queensland Competition Authority & Anor [2023] QSC 167, related R v Australian Broadcasting Tribunal; Ex Parte Hardiman (1980) 144 CLR 13; [1980] HCA 13, cited COUNSEL: S A McLeod KC, with M R Wilkinson, for the applicant J M Horton KC, with E L Hoiberg, for the first respondent C Schneider, for the second respondent SOLICITORS: Quinn Emanuel Urquhart & Sullivan for the applicant Clayton Utz Lawyers for the first respondent Herbert Smith Freehills for the second respondent [1] Aurizon Network applied by way of originating application for declaratory relief concerned with the construction of an access undertaking (“UT5”). On 28 July 2023, I dismissed the originating application and published reasons.1 I directed the parties to provide written submissions in relation to costs. These are my reasons in relation to that issue. I have adopted defined terms from my earlier reasons. [2] As between Aurizon Network and QRC, there is no issue about the appropriate costs order. Aurizon Network accepts that it should pay QRC’s costs of and incidental to the originating application to be assessed on the standard basis. [3] In relation to the QCA’s costs, Aurizon Network submits that there should be a departure from the usual rule that costs follow the event and that the QCA should bear its own costs of the proceeding or Aurizon should be ordered to pay only a small proportion of the QCA’s costs. Essentially, Aurizon Network submits that the extent of the QCA’s participation in the proceeding was unnecessary and inappropriate. [4] The originating application identified the QCA as a respondent. In addition to the declaratory relief sought, Aurizon Network sought costs against each respondent. Aurizon Network filed Points of Claim2 which alleged that matters relevant to the interpretation of UT5 included background facts and circumstances known to all parties including the respondents. The QCA filed evidence in the proceeding disputing its alleged state of knowledge.3 At the hearing, Aurizon Network abandoned its contention that UT5 fell to be interpreted by reference to the alleged background facts.4 In making that concession, Aurizon Network accepted as correct, written submissions filed by the QCA as to the proper approach to the interpretation of UT5 as a statutory instrument.5 1 Aurizon Network Pty Ltd v Queensland Competition Authority & Anor [2023] QSC 167. 2 Points of Claim filed 23 March 2023. 3 Affidavit of Paul Gold filed 3 May 2023 [11], [14], and [18]–[19]. 4 T1-5.45-50. 5 T1-6.5-10. -- 2 of 3 -- 3 [5] In my consideration, given that its state of mind was placed into issue by the Points of Claim, the QCA acted reasonably in filing evidence. The evidence it filed was essentially limited to its state of mind, the procedures which it had followed and the documents which were before it at the time of its determination. The submissions made by the QCA were substantively concerned with the correct approach to the construction of UT5. Ultimately, those submissions were adopted as correct by Aurizon Network and QRC. Further, the QCA’s conduct did not infringe the principle identified in R v Australian Broadcasting Tribunal; Ex Parte Hardiman.6 In the present case, there was no prospect of any subsequent proceeding or the matter being remitted back to the QCA for further decision. In relation to the QCA’s costs, I am unable to discern any proper reason for departing from the usual rule that costs should follow the event. Order [6] The order as to costs is that Aurizon Network pay the respondents’ costs of and incidental to the originating application to be assessed on the standard basis. 6 (1980) 144 CLR 13 at 35–36. -- 3 of 3 --