Davis v City North Infrastructure Pty Ltd (No 2) [2011] QSC 312

SUPREME COURT OF QUEENSLAND CITATION: Davis v City North Infrastructure Pty Ltd (No 2) [2011] QSC 312 PARTIES: GREGORY PAUL DAVIS (applicant) v CITY NORTH INFRASTRUCTURE PTY LTD (respondent) FILE NO: 7598 of 2011 DIVISION: Trial Division PROCEEDING: Originating Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 20 October 2011 DELIVERED AT: Brisbane HEARING DATE: Written submissions 12 and 14 October 2011 JUDGE: Applegarth J ORDER: 1. There be no order as to costs CATCHWORDS: ADMINISTRATIVE LAW – ACCESS TO INFORMATION – RIGHT TO INFORMATION – GENERAL – where the respondent sought the making of declarations that the respondent is not a “public authority” or “an agency” for the purposes of the Right to Information Act 2009 (Qld) – where the applicant contends such declarations are not necessary – whether there was utility in making the proposed declarations as sought PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – COSTS OF WHOLE ACTION – GENERALLY – where the respondent sought an order that the applicant pay the respondent‟s costs – where the application involves the determination of a matter of public interest – whether there was a public interest in the judicial determination of the issue – whether the applicant should pay the respondent‟s costs of the application Right to Information Act 2009 (Qld) Uniform Civil Procedure Rules 1999, r 681 Davis v City North Infrastructure Pty Ltd [2011] QSC 285, cited. Oshlack v Richmond River Council (1998) 193 CLR 72, -- 1 of 4 -- 2 considered. COUNSEL: R M O‟Gorman for the applicant M D Hinson SC for the respondent SOLICITORS: Roberts & Kane for the applicant Clayton Utz for the respondent [1] On 30 September 2011, I decided an issue of statutory interpretation and, as a result, dismissed an application for certain declarations.1 I said that I would hear from the parties concerning the form of orders and whether there is utility in making different declarations, namely that: 1. The respondent is not “a public authority” for the purposes of the Right to Information Act 2009; 2. The respondent is not “an agency” for the purposes of the Right to Information Act 2009. I also said that I would hear the parties in relation to the issue of costs. Form of orders [2] The applicant submits that no further orders need be made. He also submits that in circumstances where the respondent did not seek the making of any declarations, that declarations are not necessary. [3] The respondent submits that the question in dispute between the parties should be resolved by the making of declarations, and that there is utility in doing so in order to “quell the dispute between the parties in a way which will be final (subject to any appeal)”. [4] I am not persuaded that a declaration is necessary or appropriate. The declaratory relief was not refused on discretionary grounds. The dismissal of the application was based on a contentious point of statutory interpretation. The respondent did not seek the making of any declaration. A declaration in the form now proposed by it may lack utility and have unintended consequences if, for example, circumstances change and the respondent is declared by regulation to be a “government owned corporation” and thereby becomes an “agency” for the purposes of the Right to Information Act 2009. Accordingly, I decline to make declarations. Costs [5] The applicant submits that each party should bear their own costs of the proceeding. The respondent submits that the applicant should pay the respondent‟s costs. [6] The costs of a proceeding are in the discretion of the Court but follow the event, unless the Court orders otherwise.2 [7] The applicant notes that the respondent is an entity that is wholly-owned by the State of Queensland. He is the current secretary of a community group which is 1 Davis v City North Infrastructure Pty Ltd [2011] QSC 285. 2 Uniform Civil Procedure Rules 1999, r 681. -- 2 of 4 -- 3 comprised by, and represents the interests of, local residents affected by projects undertaken by the respondent. The application is submitted to involve the determination of a matter of public interest. The applicant is said to have no pecuniary interest in the outcome of the proceeding and was motivated by a desire to clarify the respondent‟s legal obligations to members of the public affected by it. [8] The applicant does not invoke the “nebulous concept” of “public interest litigation”.3 The applicant did not seek to bring the proceedings in a representative capacity. However, I accept that the community group of which he is secretary and members of the community have an interest in knowing whether the Right to Information Act 2009 applies to the respondent. There is a public interest in obtaining a judicial determination of that issue, particularly in circumstances in which the Information Commissioner ruled that the Act applied to the respondent, whereas, on appeal, the Queensland Civil and Administrative Tribunal (“QCAT”) set aside that decision. [9] In Oshlack v Richmond River Council,4 Kirby J stated: “Courts, while sometimes taking the legitimate pursuit of public interest into account, have also emphasised, rightly in my view, that litigants espousing the public interest are not thereby granted an immunity from costs or a „free kick‟ in litigation”. I do not exercise my discretion on costs on the basis that the respondent is a substantial government-owned entity. As McHugh J observed in Oshlack:5 “Gone are the days when one could sensibly speak of a public authority having „available to them almost unlimited public funds‟. Government entities are entitled like other successful litigants to invoke the general principle that the costs of a proceeding should follow the event.” [10] It is not surprising that the applicant, and other members of the public, took the view that the Right to Information Act should be interpreted so as to reflect the intent of the Queensland government which publicly-stated that it intended to adopt Recommendation 24 of the Solomon Report. If it had done so then the Act would have applied to the respondent. [11] Although I found the reasons of QCAT persuasive, it was not unreasonable of the applicant to seek a judicial ruling on an important question of statutory interpretation in which there were legitimate differences of opinion between the parties, and also between decision-makers. [12] The resolution of that issue is of benefit to the respondent in that the issue of statutory interpretation will guide other members of the public as to whether to make applications to the respondent pursuant to the Right to Information Act in circumstances where there has now been a judicial ruling on that issue. 3 Oshlack v Richmond River Council (1998) 193 CLR 72 at 84 [30]. 4 Supra at 123 [134]. 5 Supra at 107 [92]. -- 3 of 4 -- 4 [13] I accept that the applicant was motivated by a desire to clarify an important point of statutory interpretation and to advance the purpose of the Right to Information Act. The attendance of other members of the public at the hearing of the application and at the delivery of my decision indicates that other members of the public shared his interest in the issue. The fact that a judicial determination of the issue of statutory interpretation will have significance for the respondent in dealing with applications that might be made by other citizens to it pursuant to the Right to Information Act, and have significance for other persons, is not itself sufficient to require the respondent to bear its own costs. However, the fact that the decision has implications for the respondent beyond the applicant‟s specific request is a relevant consideration. The applicant‟s submissions were arguable and involved important issues about the interpretation of the Right to Information Act. [14] In all the circumstances, I consider that the appropriate order for costs is that there be no order as to costs. -- 4 of 4 --