Chibanda v Chief Executive, Queensland Health (No 2) [2018] QSC 143

SUPREME COURT OF QUEENSLAND CITATION: Chibanda v Chief Executive, Queensland Health & Anor (No 2) [2018] QSC 143 PARTIES: JOHN CHIBANDA (applicant) v CHIEF EXECUTIVE, QUEENSLAND HEALTH (first respondent) MEDICAL BOARD OF AUSTRALIA (second respondent) FILE NO: BS No 12141 of 2017 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 22 June 2018 DELIVERED AT: Brisbane HEARING DATE: Written submissions JUDGE: Applegarth J ORDERS: CATCHWORDS: COUNSEL: The applicant pay the first respondent’s costs and the second respondent’s costs of and incidental to the proceeding. PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – where the applicant’s application for an extension of time to bring a judicial review proceeding was dismissed, and his proceeding was dismissed – where the applicant applies for a costs protection order under s 49 of the Judicial Review Act 1991 (Qld) – whether costs should follow the event Judicial Review Act 1991 (Qld) s 49(1), s 49(2) Attorney-General for the State of Queensland v Barnes [2014] QCA 152 cited Chibanda v Chief Executive, Queensland Health & Anor [2018] QSC 128 cited Oshlack v Richmond River Council (1998) 193 CLR 72 followed Sharples v Crime and Misconduct Commission [2004] QSC 306 cited The applicant appeared on his own behalf -- 1 of 6 -- 2 M T Hickey for the first respondent S A McLeod for the second respondent SOLICITORS: The applicant appeared on his own behalf Crown Law for the first respondent Minter Ellison for the second respondent [1] On 4 June 2018 the applicant’s application for an extension of time to bring a judicial review proceeding was dismissed. Substantially as a result of that order, his proceeding was also dismissed.1 I made directions for submissions as to costs. The applicant has advanced two sets of written submissions on costs: (a) Submissions dated 5 June 2018 and filed on 7 June 2018 (court file index 26) in support of his application filed 16 May 2018 for a “cost protective order”, which I take to be an order under s 49(1) of the Judicial Review Act 1991 (Qld); (b) Costs submissions addendum dated 11 June 2018, a copy of which was filed on 11 June 2018 and the original of which was filed on 15 June 2018 (CFI 33 and 34). Each respondent filed submissions on costs on 18 June 2018. The issues of costs having been canvassed in writing, it is appropriate to decide them without the costs associated with having the parties speak to their written submissions. [2] I will not repeat the relevant history of the proceeding or the “decisions” made several years ago which the respondent contended were amenable to judicial review. They appear in my judgment of 4 June. Relevantly for costs purposes, the applicant was given a substantial opportunity to identify the decisions he sought to review and the basis for judicial review. [3] On 1 May 2018 and after the applicant had responded to a request for further and better particulars, the Crown Solicitor on behalf of the first respondent advised the applicant that his application was deficient and should be struck out because, among other things, he had not identified a particular decision made by the first respondent which was amenable to judicial review and he had not identified a specific legislative power that he said the decision was made pursuant to. The Crown Solicitor also noted that the application for review was significantly out of time in seeking to review a purported decision made in 2011. The applicant was informed that the Crown Solicitor had instructions to apply to have his proceeding struck out. Before doing so the applicant was given the opportunity to discontinue his application for review before further costs were incurred. On 3 May 2018 the applicant advised the solicitor for the first respondent that he did not intend to withdraw the application and would oppose any application to have his proceeding struck out. [4] On 4 May 2018 the solicitors for the second respondent wrote to the applicant and contended that his application was confused and did not clearly articulate the grounds of review. They also noted that the application was significantly out of time. Those solicitors also foreshadowed an application to have the proceeding dismissed and that if 1 Chibanda v Chief Executive, Queensland Health & Anor [2018] QSC 128. -- 2 of 6 -- 3 that application was successful to seek costs. The applicant was invited to respond to that letter before an application to strike out was filed. The applicant did so on 4 May 2018 and advised that he would not be withdrawing his case. [5] The applications came before me in the Applications List on 24 May 2018. The applicant complains that he was “ambushed” with submissions by both respondents when he came to Court just before the callover before another judge. He says this did not give him time to read the documents and to formulate his responses. My Associate’s log records that I took appearances at 10.16 am. As I recall, I was between bail applications. The respondents’ outlines were handed up and material was read. I embarked on the matter and stood the matter down at 10.26 am to enable the applicant to read more closely the respondents’ submissions and to focus submissions in response to them when the matter resumed. Contrary to the Practice Direction, of which the applicant was obviously unaware, he did not have an outline of submissions. The matter resumed before me at 11.01 am. I was told that the applicant had a plane to catch to Emerald early that afternoon, and did not wish to miss that flight. The applicant made oral submissions until 11.36 am (approximately half an hour). Because of the time constraints imposed by the applicant’s flight arrangements, counsel for the first respondent made oral submissions for only five minutes and counsel for the second respondent made submissions for only five minutes. The applicant then replied between 11.46 am and noon, at which time I indicated I would give my decision at a later date. [6] It is unfortunate that the applicant did not obtain a copy of the respondents’ submissions until the morning of the hearing. However, those submissions developed points which had been raised by the respondents’ respective solicitors a few weeks earlier. Also, it was always for the applicant to advance his application for an extension of time and to engage the principles which govern such an application. Given the applicant’s desire to catch his plane, and the additional costs that would have been occasioned by adjourning the hearing to another date, the applicant did not apply for an adjournment of the hearing. So far as I recall, he did not inform me that he had not had an opportunity to read the outlines of submissions by the time the matter resumed before me just after 11 am. The application for a costs protection order under s 49(1) [7] The respondents’ applications to strike out were filed on 8 May, and the applicant’s application for, among other things, an extension of time and a costs protection order was filed on 16 May 2018. [8] It is appropriate to avoid undue technicality and to deal with the application under s 49(1), notwithstanding that the substantive decision dismissing the application for judicial review has been handed down.2 It is appropriate to consider how that application would have been determined had time permitted it to be argued before me on 24 May 2018. Section 49 varies the ordinary rule that costs follow the event and an order under s 49 may wholly or partially protect a person from liability for costs in a case where the balance of factors in s 49(2) persuades the Court that such an order is warranted.3 I am required to consider the matters stated in s 49(2). 2 c.f. Attorney-General for the State of Queensland v Barnes [2014] QCA 152 at [44]. 3 Sharples v Crime and Misconduct Commission [2004] QSC 306 at [7]. -- 3 of 6 -- 4 [9] The first is the financial resources of the applicant. The applicant has not provided any evidence of his financial resources. However, I am prepared to proceed on the basis that he has limited means and limited income, being the recipient of Centrelink benefits. [10] Section 49(2)(b) raises the issue of whether the proceeding involves an issue that affects, or may affect, the public interest, in addition to any personal right or interest of the relevant applicant. I am not persuaded that it does. The next relevant consideration is whether the proceeding discloses a reasonable basis for the review application. For the reasons given by me on 4 June 2018, the application did not do so. It did not properly identify reviewable decisions and the grounds upon which any decision which was amenable to judicial review was likely to be quashed. More fundamentally, the applicant did not provide a basis upon which to grant an extension of time for several years. Without a grant of an extension of time the application was liable to be struck out, and therefore did not have a reasonable basis upon which to proceed to a final hearing. [11] Balancing the various matters I am required to consider under s 49(2), I am not persuaded to exercise my discretion to make a costs order in the applicant’s favour. Is there a good reason as to why costs should not follow the event? [12] The applicant submits that errors of law were committed by both respondents. However, he does not engage with the matters which appear in my reasons as to why his application was misconceived in seeking judicial review several years after the purported decisions were made and several years after he became aware of them. As noted, he initiated an application in QCAT. He contends in his submissions on costs filed 7 June 2018 that information as to the second respondent’s breaches were not available to him at that time so that the QCAT hearing “was going to be suicidal”. However, the applicant has not explained why relevant information challenging the second respondent’s decision would not have been available to him through the processes of QCAT if he had continued with that application. [13] The applicant also brought proceedings in the Queensland Industrial Relations Commission which were dismissed. He refers to the inter-related nature of his grievances against the Medical Board and Queensland Health. He says his application for judicial review to the Supreme Court “was premised on the understanding of approaching an authority with jurisdiction over both respondents since QCAT and QIRC had limitations due to the entanglement of issues and could not separately resolve them”. Unfortunately, the applicant misunderstands the nature of judicial review proceedings. The Supreme Court does not act as a backstop to investigate the merits of decisions, let alone decisions made several years ago. Unless there is good reason to do so, it does not embark upon the judicial review of decisions which may be the subject of merit review before QCAT or some other body. The applicant pursued in QCAT a challenge to the Medical Board’s decision and discontinued it. If he had succeeded in that challenge then there might have been a basis upon which to ask Queensland Health or, failing that the QIRC, to review the termination of his employment. [14] The applicant submits that the success of the respondents in this judicial review proceeding was “primarily hinged on time issues”. However, that is sufficient, in my view, to confirm the usual order that costs should follow the event. The applicant was -- 4 of 6 -- 5 told by the solicitors for each respondent that his application was significantly out of time. He faced an enormously difficult hurdle in obtaining an extension of time of several years. He was invited to discontinue his proceeding and did not do so. To the extent I was required to consider the substantive merit of his application for judicial review, it seemed to me to be without merit in key respects because he did not identify decisions which were amenable to judicial review. He did not provide an adequate explanation as to why he did not bring the application after becoming aware of relevant decisions, including the persons who constituted committees of the Medical Board which considered his case, and the reasons of the Medical Board for making the decision which it did. [15] The ordinary rule that costs should follow the event reflects an important principle and public policy: “The principle is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant. Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party (104). If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation. As a matter of policy, one beneficial by-product of this compensatory purpose may well be to instil in a party contemplating commencing, or defending, litigation a sober realisation of the potential financial expense involved. Large scale disregard of the principle of the usual order as to costs would inevitably lead to an increase in litigation with an increased, and often unnecessary, burden on the scarce resources of the publicly funded system of justice.”4 [16] The fact that the applicant apparently is without the means to pay a costs order is not a sufficient reason as to why costs should not follow the event. I do not doubt his sense of grievance against the respondents and that he believes that he was badly treated in the course of investigations that were undertaken. However, his belief that he was “subject to harassment on trumped up charges” and should have had his special purpose registration renewed, notwithstanding the fact that he failed examinations, does not alter the fact that his application for judicial review was years out of time and misconceived in some fundamental respects. [17] The public resources of Queensland Health and the Medical Board of Australia have been expended in defending a proceeding which should not have been persisted in. The applicant was given an opportunity to discontinue and warned of the costs consequences to him if he did not do so. I accord appropriate latitude to the applicant as a self- represented litigant. However, the Supreme Court is not a “no costs” jurisdiction and all litigants are subject to the rules, including the rule that costs should follow the event unless there is good reason for them not to do so. The resources of the respondents should not be unnecessarily devoted to defending misconceived litigation. They are better devoted to providing health care and regulating the medical profession. Legal costs were incurred by the respondents in respect of decisions and events which occurred years ago. Judicial review is not merit review and any proceeding for judicial review should have 4 Oshlack v Richmond River Council (1998) 193 CLR 72 at 97 [67]-[68]. -- 5 of 6 -- 6 been brought by the applicant promptly. The applicant’s apparent misunderstanding of the nature of judicial review, his inability to properly formulate a case for judicial review, and his bringing an application for judicial review years after the event justified the stance which each respondent took in early May 2018, when each foreshadowed an application to strike out the proceeding if the applicant did not discontinue. [18] In the circumstances, I consider that the most appropriate exercise of my discretion is to follow the usual rule that costs follow the event. The order for costs will be that the applicant pay the first respondent’s costs and the second respondent’s costs of and incidental to the proceeding. -- 6 of 6 --