Commissioner of Police v Clements & Ors [2005] QSC 203 [2006] 1 Qd R 210

SUPREME COURT OF QUEENSLAND CITATION: Commissioner of Police v Clements & Ors [2005] QSC 203 PARTIES: COMMISSIONER OF THE POLICE SERVICE (applicant) v DEPUTY STATE CORONER CLEMENTS (first respondent) and ERYKAH KYLE, CHAIR OF PALM ISLAND ABORIGINAL COUNCIL (second respondent) and TRACY LEE MARIA TWADDLE (third respondent) and HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION (fourth respondent) and JANE DOOMADGEE (fifth respondent) and CHRISTOPHER HURLEY (sixth respondent) and MICHAEL LEAFE (seventh respondent) and ATTORNEY-GENERAL OF QUEENSLAND (eighth respondent) FILE NO: BS3421 of 2005 DIVISION: Trial Division PROCEEDING: Application for judicial review DELIVERED ON: 22 July 2005 DELIVERED AT: Supreme Court, Brisbane HEARING DATE: 27, 28 June 2005 JUDGE: Wilson J ORDERS: (1) Application dismissed; (2) The applicant to pay the second respondent’s costs of and incidental to the application to be assessed on the standard basis. (3) The applicant to pay the eighth respondent’s costs of -- 1 of 15 -- 2 and incidental to the application to be assessed on the standard basis. CATCHWORDS: ADMINISTRATIVE LAW — JUDICIAL REVIEW – GROUNDS OF REVIEW – ERROR OF LAW – where inquest by Coroners Court – where decision by Deputy State Coroner to allow counsel inspection of certain documents – whether the Deputy State Coroner erred in finding the existence of a legitimate forensic purpose – where the pursuit of the information for use in cross-examination as to credit a legitimate forensic purpose ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – DECISIONS TO WHICH JUDICIAL REVIEW LEGISLATION APPLIES – MEANING OF DECISION – GENERALLY – where “decision” by Deputy State Coroner in relation to rights to make submissions pursuant to s 36 of the Coroners Act 2003 (QLD) – whether of operative or determinative effect Administrative Decisions (Judicial Review) Act 1977 (Cth) Coroners Act 2003 (QLD), s 3, s 11, s 14, s 27, ss 36-37, s 39, ss 45-47, s 52, ss 54-56 Crime and Misconduct Act 2001 (QLD), s 41 Judicial Review Act 1991 (QLD), s 7, ss 20-21, s 44 Police Service Administration Act 2000 (QLD), s 4.8 Annets v McCann (1990) 170 CLR 596, cited Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, cited Di Carlo v Dubois & Ors [2002] QCA 225, cited Humane Society International Inc v Minister for Environment and Heritage (2003) 126 FCR 205, cited R v Spizzirri [2001] Qd R 686; [2000] QCA 469, applied R v Tennent; Ex parte Jager (2000) 9 Tas R 111, cited Tasmanian Conservation Trust Inc v Minister for Resources (1995) 55 FCR 516, cited COUNSEL: A Rafter SC and D Katter for the applicant A Boe (solicitor) for the second respondent P Callaghan SC and A Moynihan for the fifth respondent M Hinson SC for the eighth respondent SOLICITORS: Queensland Police Service Solicitor for the applicant Boe Lawyers for the second respondent Legal Aid Queensland for the fifth respondent Crown Solicitor for the eighth respondent [1] WILSON J: The Coroners Court, constituted by the first respondent, is holding an inquest into the death of a man referred to by his family as Mulrunji in the Palm Island watch-house on 19 November 2004. Senior Sergeant Hurley (the sixth -- 2 of 15 -- 3 respondent) was the officer in charge of the Palm Island police station and watch- house. [2] This is an application by the Commissioner of the Queensland Police Service to review two decisions of the first respondent made on 6 April 2005 – (i) “Access to inspect the complaint history of Senior Sergeant Hurley from both the Queensland Police Service files and the Criminal Misconduct Commission [sic] files is permitted to Counsel for the family of the deceased1 and also to Counsel for the Palm Island Aboriginal Council.2 However, I order a stay on such access pending Judicial Review of this and any other orders.” (ii) “I find there is nothing in the new legislation restricting persons who are appearing from examining witnesses and making submissions on factual findings.3 This would be subject to the implicit embargo on making submissions to the effect that a person had committed an offence (as distinct from making submissions on a particular finding of fact.)” The applicant seeks a statutory order of review under part 3 of the Judicial Review Act 1991 or alternatively a prerogative order under part 5 of that act. [3] The State Coroner commenced an investigation into Mulrunji's death. By s 37(2) of the Coroners Act - "37 Evidence (2) The Coroners Court may require a person to produce a document to the court before the start of an inquest." On 16 February 2005 the State Coroner ordered the applicant to produce the following documents (inter alia) to the Coroners Court by Tuesday 22 February 2005 - “1. Complete and original ‘Complaints History’, including all substantiated and unsubstantiated allegations, of Senior Sergeant Christopher James HURLEY, Registered Number: 6747, including all files, documents, records, notes, writings, statements, transcripts, video tapes, audio tapes, photographs, reports, recommendations and findings, relating to the abovementioned officer;” The documents were duly produced. [4] When the inquest commenced on 28 February 2005, the State Coroner placed on record that in his previous employment at the Criminal Justice Commission he had handled complaints in relation to the sixth respondent. Those complaints did not result in any adverse finding against the sixth respondent. Legal representatives of the second respondent and the fifth respondent were given access to the relevant files in 1 The fifth respondent 2 The second respondent 3 Coroners Act 2003 s 36 -- 3 of 15 -- 4 order to inform themselves of the nature and extent of the State Coroner's role in the investigations. Subsequently, and for other reasons, the State Coroner withdrew from the inquest and its conduct was assumed by the first respondent. [5] On about 29 March 2005 the Deputy State Coroner made a written request to the Crime and Misconduct Commission to produce files held by it in relation to the sixth respondent. The requested files were duly produced on 5 April 2005. [6] Counsel assisting the coroner had formulated a number of matters for argument in a document dated 9 March 2005. They included - “(1) The interpretation of ss 45, 46 and 36 of the Coroners Act and Consideration of Propensity Evidence (a) S.45(5) and s.46(3) impose upon the Deputy Coroner an obligation to not include in her findings or comments, any statement that a person is, or may be, guilty of an offence or civilly liable for something. To what extent does this obligation inhibit the Deputy Coroner in her findings and comments? … (b) Consideration of s.36 of the Act follows from (a) above. Persons permitted to appear may, inter alia, make submissions at an Inquest. If the Deputy Coroner is constrained in her findings (and comments) such that, to continue the example above, she cannot state in the findings that any application of force to the Deceased was or may have been deliberate, does it necessarily follow that persons permitted to appear are prohibited from making submissions that any application of force was or may have been deliberate? (c) … (2) Access to Senior Sergeant Hurley’s Disciplinary Records” The parties appearing at the inquest made written and oral submissions with respect to these. The first respondent issued a number of Preliminary Orders on 6 April 2005, including the two orders which are the subject of the present application. Access to the sixth respondent's disciplinary records [7] The applicant has standing to challenge the first respondent's decision in so far as it relates to Queensland Police Service files. He is responsible for discipline of members of the Queensland Police Service, and has a duty to investigate allegations of misconduct made against members of the Queensland Police Service.4 But it is the Crime and Misconduct Commission and not the applicant who has standing5 to challenge the decision in so far as it relates to files held by the CMC. The CMC has 4 insert reference to Police Service Administration Act 2000, s 4.8 5 see Judicial Review Act s 7 (meaning of person aggrieved); and s 44 (who may make application) -- 4 of 15 -- 5 not challenged the first respondent's decision, and the stay should be lifted in so far as it relates to files held by the CMC. [8] The objects of the Coroners Act, as set out in s 3, include to - “… (c) establish the procedures for investigations, including by holding inquests, by coroners into particular deaths; and (d) help to prevent deaths from similar causes happening in the future by allowing coroners at inquests to comment on matters connected with deaths, including matters related to - (i) public health or safety; or (ii) the administration of justice.” [9] The first respondent is investigating Mulrunji's death in custody pursuant to s 11 of the Coroners Act, and the inquest is required to be held by s 27. By s 45 the first respondent is obliged, if possible, to make certain findings, and by s 46 she may comment on certain matters. Those sections provide - “45 Coroner's findings (1) A coroner who is investigating a suspected death must, if possible, find whether or not a death in fact happened. (2) A coroner who is investigating a death or suspected death must, if possible, find – (a) who the deceased person is; and (b) how the person died; and (c) when the person died; and (d) where the person died, and in particular whether the person died in Queensland; and (e) what caused the person to die. (3) However, the coroner need not make the findings listed in subsection (2) if – (a) the coroner is unable to find that a suspected death in fact happened; or (b) the coroner stops investigating the death under section 12(1). (4) The coroner must give a written copy of the findings to - -- 5 of 15 -- 6 (a) a family member of the deceased person who has indicated that he or she will accept the document for the deceased person's family; and (b) if an inquest was held - any person who, as a person with a sufficient interest in the inquest, appeared at the inquest; and (c) if the coroner is not the State Coroner - the State Coroner. (5) The coroner must not include in the findings any statement that a person is, or may be – (a) guilty of an offence; or (b) civilly liable for something. (6) This section applies whether or not an inquest is held. 46 Coroner's comments (1) A coroner may, whenever appropriate, comment on anything connected with a death investigated at an inquest that relates to - (a) public health or safety; or (b) the administration of justice; or (c) ways to prevent deaths from happening in similar circumstances in the future. (2) The coroner must give a written copy of the comments to - (a) a family member of the deceased person who has indicated that he or she will accept the document for the deceased person's family; and (b) any person who, as a person with a sufficient interest in the inquest, appeared at the inquest; and (c) if the coroner is not the State Coroner - the State Coroner; and (d) if a government entity deals with the matters to which the comment relates – (i) the Minister administering the entity; (ii) the chief executive officer of the entity; and -- 6 of 15 -- 7 (3) The coroner must not include in the comments any statement that a person is, or may be – (a) guilty of an offence; or (b) civilly liable for something.” [10] The documents produced by the applicant to the Coroners Court are "investigation documents" within this definition in schedule 2 to the Coroners Act - “‘investigation document’, for an investigation under this Act, means - ... (d) another document or part of a document connected to the investigation that the coroner obtains under this Act." By s 56, persons wanting access to these documents had to obtain the first respondent's consent, which she could give only if satisfied they had a sufficient interest in them. [11] The first respondent used the existence of a legitimate forensic purpose as the test in determining whether to allow counsel for the second respondent and counsel for the fifth respondent access to the documents. That is the test used in determining whether to grant counsel access to subpoenaed documents in a criminal trial: R v Spizzirri6 and it has not been suggested that the first respondent erred in employing it. Rather, it was submitted by counsel for the applicant that she erred in finding that such a purpose existed in the circumstances; in particular that the contents of the files on completely unrelated matters could not be relevant to the first respondent’s functions under ss 45 and 46. In order to understand this argument, it is necessary to review the first respondent’s reasoning at some length. [12] Counsel for the second respondent and counsel for the fifth respondent had had a brief opportunity to look at the files (or some of them) when the State Coroner had disclosed his handling of complaints against the sixth respondent when he was working for the CJC. They apparently included complaints of using excessive force, causing injury, and displaying disrespect towards Police Liaison Officers and Palm Island community residents. It was submitted both before the first respondent and before this Court that the documents are of potential relevance to – (a) the credit of the sixth respondent, which is inextricably linked to the matters on which the first respondent is obliged to make findings under s 45; and (b) remedial comments the first respondent may make under s 46. This is how counsel for the second respondent put the argument in written submissions to the first respondent:- “The existence of past complaints … means that there have been opportunities for the Police Service and the CMC to put measures in place to address Senior Sergeant Hurley’s behaviour, for example by 6 [2000] 2 Qd R 686; [2000] QCA 469 -- 7 of 15 -- 8 way of corrective training, supervision, or relocation to police non- Aboriginal communities. That complaints have not been actioned because of a finding that they were ‘unsubstantiated’ raises important questions as to the competence, thoroughness and independence of the investigation process. In order to properly exercise the remedial function, the Deputy Coroner should undertake a thorough investigation of the manner in which past complaints have been investigated and determined, and make recommendations to avoid systemic failures in the future … … However, the processes adopted in investigating and addressing complaints cannot be examined without the parties having access to Senior Sergeant Hurley’s disciplinary records …” [13] In Spizzirri Pincus JA reviewed the authorities on the right of defence counsel to inspect subpoenaed documents. His Honour drew a clear distinction between the inspection of subpoenaed documents and what use should be allowed to be made of the documents or the information contained in them. The issue in that case was inspection, as it is in this case. At para 24 His Honour said – “It appears to me to emerge from the authorities that inspection of subpoenaed documents by the defence should be permitted, where that is required for some legitimate forensic purpose, which purpose must be sufficiently disclosed. The purpose may be or include the obtaining of information, in particular for use in cross-examination as to credit. Further, courts should be careful not to deprive the defence of documents which could be of assistance to the accused.” The test is that of a legitimate forensic purpose, and not forensic relevance or admissibility. Until a document is inspected, it will often be impossible to assess its relevance or admissibility; a document which is inadmissible may nevertheless contain information which is admissible in another form or which may lead to other evidence which is admissible. [14] The first respondent considered that – “a proper forensic purpose warranting inspection of previous complaint history relating to the police officer can be made out both with respect to section 45 findings that a coroner must make and with respect to section 46 comments directed to preventing similar deaths in the future.” She reasoned – “It could be helpful to understand the way in which these circumstances of death arose by looking at other information where there have been complaints of assault within the context of arrest. -- 8 of 15 -- 9 Have there been occasions of complaint suggesting excessive force in the course of arrest? Have there been other arrests on Palm Island in similar background factual circumstances where complaints have been made? Have there been other occasions of injury in the course of arrest? If so, what kinds of injury have been complained of? Is there information about the level of intoxication of any other complaints and does this have any co-relation to injury? It is also conceivable that consideration of any information suggestive of any adverse racial consideration by the police officer in his past work might help to understand the context of Mulrunji’s death and to make findings of fact. To access this information does not necessarily make it legally capable of consideration by the appropriate authority (which is not the coroner) in consideration of bringing any criminal charge. But it could help to understand and make full factual findings about the circumstances of the death. If, for example injury has occurred on other occasions when a person is apparently intoxicated could this be relevant in understanding how an injury might have been incurred? In addition to this, access to previous complaint material legitimately falls within the coroner’s broad responsibility to address remedial comments in an effort to help to prevent deaths from similar causes. If there are previous complaints alleging injury, particularly where a person is intoxicated and thus less capable of avoiding injury however occurring, then these complaints should be available for consideration of remedial comment. Again, the types of complaints made, particularly where they have alleged injury or inappropriate response based on race are highly relevant to remedial comment and can be argued to be connected with this death. Questions need to be asked:- Was the process of investigation of complaints sufficient? Was there an appropriate response to determinations back to the police officer, and the complainant? Were any systemic issues raised, for example training issues for officers, or resource issues?” [15] While the Coroners Court is not bound by the rules of evidence7 , the touchstone of the evidence and submissions it may receive must be relevance to the matters the coroner is empowered to investigate, the questions on which he or she must make findings and the matters on which he or she may comment. The primary function of a coroner is to investigate a particular death, in this case that of Mulrunji. The findings which must be made under s 45 all relate to a particular death. The comments a coroner may make under s 46 must be connected with the particular death under investigation but are necessarily directed at wider issues – public health or safety, the administration of justice, or ways to prevent deaths from happening in similar circumstances in the future. Allowing for such comments promotes one of the objects of the Act. 7 Coroners Act 2003 s 37(1) -- 9 of 15 -- 10 [16] Section 14 of the Coroners Act provides – “14 Guidelines and directions for investigations (1) To ensure best practice in the coronial system, the State Coroner – (a) may issue directions to the coroner investigating a particular death about a particular aspect of the investigation; and (b) must issue guidelines to all coroners about the performance of their functions in relation to investigations generally. (2) … (3) … (4) When investigating a death, a coroner must comply with the guidelines and any directions issued to the coroner to the greatest practicable extent. (5) However, to the extent that a direction conflicts with the guidelines, a coroner must comply with the direction. (6) …” State Coroner’s Guidelines were issued in December 2003. Relevantly, sections 548 and 55 9 are reproduced, and then the following appears – “In principle Any party who needs to access investigation documents for the purposes of the inquest should be given access to them subject to the condition that they will not be used for any other purpose. Other people should only rarely be given access to investigation documents prior to the completing of the investigation and only if there is an urgent need for such access. In practice The information contained in investigation documents may be very sensitive and, prior to the completion of the investigation and the making of findings, it should not be disclosed. The exceptions to this general rule are:- x … 8 Access to investigation documents 9 Conditions imposed on access -- 10 of 15 -- 11 x Parties given leave to appear need to be given access to all investigation documents prior to the inquest commencing so that they can alert the counsel assisting to any other witnesses they believe might need to be called or other issues that might warrant investigation. An order should be made that parties who gain access to these documents for that purpose use them for no other purpose and disclose the contents only to the extent necessary to receive instructions for participation in the inquest. x …” [17] While the guidelines are binding on a coroner, they do not expand the scope of the questions on which the coroner must make findings or the matters on which he or she may comment. The principle is expressed in terms of a need to access investigation documents for the purposes of the inquest – and those purposes are to be found in the legislation itself. [18] The nub of the submission of counsel for the applicant is that documents relating to complaints that were not resolved adversely to the sixth respondent “don’t take the matter anywhere at all”, and that the first respondent should not be concerned with the adequacy of investigations in respect of completely unrelated matters. [19] In a criminal case a liberal approach is taken to the identification of a legitimate forensic purpose: see Spizzirri at para 32. The scope of the questions which the coroner must answer under s 45 and the matters on which she may comment under s 46 afford good reason for taking a similar approach in an inquest. The Guidelines emphasise the requirement for a broadly focussed investigation into a death in custody – “The investigation is primarily the responsibility of the coroner to whom the death is reported. He/she should obtain whatever assistance is needed to effectively investigate the matter. The investigation must extend beyond the simple medical cause of the death and seek to establish the circumstances that contributed to the death occurring and consider whether any changes to law or practice would reduce the likelihood of deaths occurring in the future.” [20] In Spizzirri the Court of Appeal determined that the obtaining of information for use in cross-examination as to credit could be a legitimate forensic purpose for seeking access to subpoenaed documents. Here counsel for the applicant pointed out that the sixth respondent has not yet been called as a witness at the inquest, and that he retains the right of privilege against self-incrimination, although he could be directed to answer questions if the first respondent considered it in the public interest10 . He submitted that it would be premature to premise the accessing of the documents on the prospect that they might impact on credit, especially in circumstances where no more was demonstrated than that complaints had been made which had not been resolved adversely to the sixth respondent. I do not accept this submission. To make counsel wait until the sixth respondent gives evidence to rule on whether they may have access to such documents because of their potential to provide or lead to information relevant to cross-examination as to credit would be to hinder counsel 10 Coroners Act 2003 s. 39(2) -- 11 of 15 -- 12 unduly in their preparation for their cross-examination, and to no end. I am satisfied that the pursuit of information for use in cross-examination of the sixth respondent is a legitimate and sufficient forensic purpose justifying access to the documents in question. [21] Further I am satisfied that the pursuit of information about systemic issues relevant to those matters on which the first respondent may comment is a legitimate and sufficient forensic purpose justifying access to the documents in question. But it is not necessary for me to rule on whether all of the systemic issues identified by counsel in their submissions do come within the ambit of the matters on which the coroner may comment, and I should not be taken to have expressed any view on whether the coroner may comment on the adequacy of investigations by the Police Service and the CJC or CMC into previous complaints against the sixth respondent. [22] Finally I mention s 52 of the Coroners Act which provides – “52 Documents that can not be accessed (1) A coroner must not give a person access to an investigation document to the extent that the document – (a) …… (b) contains information that is likely to – (i) prevent a person from receiving a fair trial; … (c) contains information about a living or dead person’s personal affairs, including, for example, information about the person’s health, unless the information is relevant to a matter mentioned in section 45(2); (d) contains information that was obtained from a person under a requirement in another Act that compelled the person to give the information. (2) Sections 53 and 54 are subject to this section.” In submissions before the first respondent counsel for the sixth respondent disavowed reliance on s 52(1)(b)(i); in this application he undertook to abide the order of the Court and counsel for the applicant did not rely on this provision. Section 52(1)(c) was not relied on. Senior counsel for the applicant informed the Court that he understood the first respondent was not proposing to release the documents to the extent that they contain information of the type referred to in s 52(1)(d), and the entitlement to such documents was not pressed by any of the parties. [23] I am satisfied that the first respondent’s decision in relation to access to the documents was not tainted by error of law or that it should be reviewed on any other ground. -- 12 of 15 -- 13 Rights to make submissions [24] Section 36 of the Coroners Act provides – “(1) The following persons may appear, examine witnesses, and make submissions, at an inquest – (a) a police officer, lawyer or other person assisting the Coroners Court; (b) the Attorney-General; (c) a person who the Coroners Court considers has a sufficient interest in the inquest. (2) The Attorney-General or a person who the Coroners Court considers has a sufficient interest may be represented by a lawyer. (3) In this section - ‘examine’ includes cross-examine.” [25] Counsel for the applicant submitted – (a) that the first respondent’s order permitting parties represented at the inquest to make submissions on factual matters was premature; and (b) that the right to make submissions granted by s 36(1) is limited to those with a sufficient interest, ie those in respect of whom adverse findings might be made. 11 The solicitor for the second respondent submitted that the “decision” that there is nothing in the act which disqualifies a party from making submissions is indisputably correct, while counsel for the fifth respondent submitted that the “decision” does not exist: that the first respondent did not make a decision that anyone was entitled to make submissions but merely stated the effect of the legislation. [26] By ss 20 and 21 of the Judicial Review Act a person aggrieved by a decision to which the act applies or by conduct related to the making of such a decision may apply for a statutory order of review, which this Court may hear and determine pursuant to s 19. By s 4 – “….. ‘decision to which this Act applies’ means – (a) a decision of an administrative character made, proposed to be made, or required to be made, under an enactment (whether or not in the exercise of a discretion)… (b) …” 11 They relied on Annetts v McCann (1990) 170 CLR 596 and R v Tennent; Ex parte Jager (2000) 9 Tas R 111 -- 13 of 15 -- 14 As Kiefel J observed of the corresponding provision in the Administrative Decisions (Judicial Review) Act 1977 (Cth) in Humane Society International Inc v Minister for Environment and Heritage12 , not only must there be a statutory authority for the decision: there must also be circumstances upon which the statutory provision was meant to operate. Whether a person has a sufficient interest to be entitled to make submissions (and the subjects on which he or she might make submissions) has not arisen yet, and will not do so until the evidence is concluded. The first respondent’s “decision” is no more than an expression of opinion on the interpretation of s 36. It does not have any operative or determinative effect,13 and it does not have the necessary procedural character to make it “conduct” within s 21 of the Judicial Review Act.14 [27] Just as it was premature for the first respondent to rule on the extent to which parties permitted to appear at the inquest may make submissions, it would be inappropriate for this Court to give an advisory opinion on the question. [28] In so far as it relates to the second “decision” of the first respondent, the application for a statutory order of review should be dismissed as incompetent as there was no decision or conduct capable of review. [29] Even if the first respondent’s interpretation of s 36 is incorrect, it is no more than an expression of opinion, and not amenable to a prerogative order under part 5 of the Judicial Review Act. Conclusion [30] The application should be dismissed. Costs [31] The solicitor for the second respondent sought an order that the applicant pay his client’s costs of the application on the indemnity basis. Counsel for the fifth respondent did not seek any order for costs. [32] The second respondent’s application for indemnity costs rested heavily on the applicant’s having by his application sought to review the first respondent’s decision to grant access to documents held by the CMC. He pointed out that it was not until senior counsel for the applicant was addressing that the applicant conceded he had no standing to do so and said that had the second respondent had access to the CMC files, she may not have wished to be heard on this application. [33] There needs to be some special or unusual feature in a case to justify departure from the ordinary practice of granting costs on the standard basis. See Di Carlo v Dubois,15 Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd, 16 and Colgate-Palmolive Company v Cussons Pty Limited.17 The applicant’s late concession of lack of standing to challenge one aspect of the first decision is not a 12 (2003) 126 FCR 205 at 214 13 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at para [32] per Mason CJ 14 Tasmanian Conservation Trust Inc v Minister for Resources(1995) 55 FCR 516 at 550; Humane Society International Inc v Minister for Environment and Heritage at 214 – 215 15 [2002] QCA 225 at paras [36] – [40] 16 (1988) 81 ALR 397 17 (1993) 46 FCR 225 -- 14 of 15 -- 15 sufficient basis for awarding indemnity costs, especially where the second respondent proceeded to exercise her right to be heard on other matters after that concession had been made. [34] I order the applicant to pay the second respondent’s costs of and incidental to the application to be assessed on the standard basis. [35] Further I order the applicant to pay the eighth’s respondent’s costs of and incidental to the application to be assessed on the standard basis. -- 15 of 15 --