Brisbane City Child Care Pty Ltd v Dalton [2017] QSC 187

SUPREME COURT OF QUEENSLAND CITATION: Brisbane City Child Care Pty Ltd v Dalton [2017] QSC 187 PARTIES: BRISBANE CITY CHILD CARE PTY LTD ACN 106 662 337 (applicant) v JESSICA DALTON IN HER CAPACITY AS DELEGATE OF THE REGULATORY AUTHORITY AND CHIEF EXECUTIVE, DEPARTMENT OF EDUCATION AND TRAINING OF THE STATE OF QUEENSLAND (respondent) FILE NO/S: BS 5621 of 2016 DIVISION: Trial Division PROCEEDING: Application DELIVERED ON: 4 September 2017 DELIVERED AT: Brisbane HEARING DATE: On the papers. JUDGE: Bond J ORDER: The respondent must pay the applicant’s costs of and incidental to the proceeding to be assessed on the standard basis, if not agreed. CATCHWORDS: PROCEDURE – COSTS – GENERAL MATTERS – where applicant was successful in judicial review application – where respondent accepts that there should be a costs order against her, but submits that there should be an 80% apportionment and 5% reduction – whether an apportionment or reduction should be made Judicial Review Act 1991 (Qld) Uniform Civil Procedure Rules 1999 (Qld), r 307, 681, r 684, r 692 Firebird Global Master Fund II Ltd v Republic of Nauru (No 2) (2015) 327 ALR 192, cited Urquhart v Partington [2016] QCA 199, cited SOLICITORS: Thomson Geer for the applicant Clayton Utz for the respondent [1] The applicant conducts a child care centre in Brisbane and sought a decision from the regulatory authority to grant a “service waiver” to relax the space requirement which would then permit it to provide care for a greater number of children. The respondent was the -- 1 of 5 -- 2 delegate of the regulatory authority, duly authorized to make the decision in respect of the application. [2] The respondent refused the application. Pursuant to the Judicial Review Act 1991 (Qld), the applicant brought an application for review and an application for a statutory order of review, with a view to having the respondent’s decision set aside. [3] My judgment on the application was published on 28 July 2017.1 I ordered that the respondent’s decision be set aside with effect from the date it was made. [4] It is now necessary to resolve a dispute between the parties as to the order which should be made in relation to the costs of the proceeding. [5] The applicant submits that, pursuant to r 681 of the Uniform Civil Procedure Rules 1999 (Qld), costs should follow the event, unless I otherwise order. It submits that there are no circumstances justifying any other order. Accordingly, it seeks an order that the respondent should pay its costs of and incidental to the proceeding to be assessed on the standard basis, if not agreed. [6] The respondent accepts that there should be a costs order against her. However she seeks to persuade me to exercise the jurisdiction conferred on me by r 684 of the UCPR to order that she should only be required to pay 75% of the applicant’s costs of and incidental to the proceeding to be assessed on the standard basis, if not agreed. [7] First, the respondent submitted that a 5% reduction in costs should be made to take into account costs associated with the original joinder of the second respondent. She contended that the second respondent was improperly joined and was only removed from the proceeding at a very late stage. The submission that those circumstances warrant the reduction sought must be rejected. Having regard to the observations which I made in my judgment at [74]-[76], I agree with the applicant’s submission that it is to be doubted that the second respondent was improperly joined. However, and more importantly for present purposes, I also agree with the applicant’s submission that: (a) a notice of discontinuance was filed by consent on 24 November 2016 which was the day before the hearing; (b) r 307(1) already operates to render the applicant liable to pay the then second respondent’s costs up to the discontinuance; and (c) accordingly, there is no case for the making of the proposed reduction in the costs which the respondent (originally the first respondent) must pay in consequence of losing the application. [8] Second, the respondent submitted that a 20% reduction in costs should be made to take into account the facts that: (a) the applicant only succeeded on one of the substantive grounds of review in the application; and (b) the applicant twice amended the application during the course of the hearing, with the result that the applicant ought to pay the respondent’s costs thrown away by the amendments. [9] In effect the respondent asks me to make a global judgment that those two considerations ought mitigate what would otherwise be her liability to pay costs, and ought to do so to the extent of 20%. 1 Brisbane City Child Care Pty Ltd v Dalton [2017] QSC 152. -- 2 of 5 -- 3 [10] In order to deal with the first part of this argument, it is necessary briefly to explain the way in which the application was resolved by me in my judgment of 28 July 2017. [11] The grounds for the challenge of the decision which were pursued before me were: (a) breach of the rules of natural justice; (b) failure to take into account relevant considerations; (c) taking into account irrelevant considerations; and (d) making errors of law in the form of misconstruction of particular legislative provisions. [12] As to the alleged breaches of the rules of natural justice: (a) I found that there had been two breaches of the hearing rule2 and that those breaches justified my acceptance of the applicant’s contention that the decision should be set aside with effect from the date it was made.3 I rejected one further argument as to breach of the hearing rule.4 (b) I rejected the applicant’s submission that the respondent demonstrated actual bias by way of prejudgment prior to making the final decision.5 I also rejected the applicant’s contention that there was a reasonable apprehension of bias on behalf of the respondent.6 [13] As to the alleged failure to take into account relevant considerations, the applicant had developed a submission that the respondent had made a fundamental error in her apprehension of the nature of the application. I rejected that submission on the basis that it was misconceived.7 [14] As to the alleged taking into account of irrelevant considerations: (a) I rejected the first allegedly irrelevant consideration because I accepted the respondent’s evidence that it was not taken into account.8 (b) I rejected the second allegedly irrelevant consideration9 because I thought that either: (i) the breadth of considerations which were relevant was such that it could not be said that it was erroneous to take the subject consideration into account in the limited way in which the respondent had; or (ii) if I was wrong in reaching that view, the materiality of the consideration was not such as would require a remedy. (c) I rejected the third allegedly irrelevant consideration because it was not an irrelevant consideration. I thought the vice was not the fact that it was considered, but the fact that the applicant was not given the opportunity to address it specifically.10 [15] As to the contention that the decision involved errors of law in the form of misconstruction of particular legislative provisions, I agreed with the respondent’s submissions that there was 2 Reasons at [38]-[51]. 3 Reasons at [52]. 4 Reasons at [51]. 5 Reasons at [54]-[55]. 6 Reasons at [56]-[57]. 7 Reasons at [58]-[64]. 8 Reasons at [65]. 9 Reasons at [66]-[67]. 10 Reasons at [68]. -- 3 of 5 -- 4 no proper basis on which it may be inferred that the decision involved a misconstruction of any of the identified provisions.11 [16] Each of the arguments on which the applicant was unsuccessful was essentially an alternative route to the outcome it obtained by virtue of the issues on which it was successful. That would not usually warrant a departure from the general principle that costs should follow event: cf Firebird Global Master Fund II Ltd v Republic of Nauru (No 2) (2015) 327 ALR 192 at [5]-[6] and Urquhart v Partington [2016] QCA 199 at [9]-[10]. [17] No doubt a shotgun approach to judicial review applications is not to be encouraged. An applicant who proceeded in such a way, by advancing a plethora of separate time-consuming arguments, only one of which eventually found favour with the court, might well run the risk of being deprived of a portion of its costs, or even of being required to pay some part of the respondent’s costs. [18] However the respondent’s submissions on costs have not sought to explain by reference to the facts or the time taken in argument or any other aspect of how the case was actually conducted why it is that the fact of the arguments which the applicant ran and lost warrants the conclusion for which the respondent has contended. [19] The respondent has not persuaded me that this consideration warrants any alteration to the usual order. [20] As to the second consideration: (a) The applicant noted that the application was amended twice and without opposition: first at the outset of the hearing (the amendment having been foreshadowed by correspondence 2 months earlier) and the second time during the course of argument (the amendment being sought as a result of evidence given by the respondent during cross-examination). (b) Rule 692(2) of the UCPR operates so that the applicant is liable to pay the costs thrown away by the amendments unless the Court orders otherwise. On each occasion, leave to make the amendments was granted without objection and without my being asked to make any order that the applicant not be liable for costs. (c) The applicant now submits to me that it is likely that there were no costs thrown away. But that seems to me to be a question for costs assessment, in the event that the respondent seeks to enforce the liability created by the operation of r 692. So far as the question before me is concerned, I agree with the applicant that the fact that there were two amendments to the application does not warrant any alteration to the usual order. [21] It remains briefly to deal with one further matter. [22] My judgment of 28 July 2017 was critical of the fact that eight volumes of documentary evidence comprising thousands of pages were tendered for the one day hearing, when the relevant documentary evidence could have been encompassed within a single volume.12 The parties’ written submissions on costs touched upon whether there had in fact been any departure from a practice which should be regarded as orthodox, or whether blame should be attributed one way. These submissions are not relevant to the costs order I should make, so I will not engage with them. The applicant did submit that costs of perusal of all the 11 Reasons at [70]-[72]. 12 Reasons at [6]-[8]. -- 4 of 5 -- 5 documentation should be included in the assessment of its costs of the proceeding, but whether there is any merit in that submission is a matter for the costs assessor. [23] The respondent must pay the applicant’s costs of and incidental to the proceeding to be assessed on the standard basis, if not agreed. -- 5 of 5 --