Barker v Qld Fire and Rescue Authority & Anor [2000] QSC 395

[2] Submissions about what costs orders, if any, which ought to be made have been provided in writing. QFRA and Mr Gilbert seek their costs. Mr Barker submits that either each party should bear its or his own costs pursuant to s 49(1)(e) or, alternatively, that there is no jurisdiction to make a costs order under the general law.

[3] The ambit of s 49 was considered in Anghel v Minister for Transport (No 2) [1994] QCA 232; [1995] 2 Qd R 454. If the applicant for costs falls within the parameters of s 49 then the provisions of that section will govern the court's discretion as to how the costs ought to be borne. If not, the general rules of court in relation to costs apply, s 49(4).

[4] Section 49 has limited application. It provides that if a costs application is made to a court by either

* a person who has been made a party to a review application under s 28, or

* a person who otherwise is a party to a review application and is not the person whose decision is the subject of the review application,

the court may make an order that another party to the review application indemnify the applicant for costs in relation to the costs of the review application from the time the costs application was made, or, that a party to a review application is to bear only that party's own costs regardless of the outcome of the proceeding.

[5] Mr Barker has not made a costs application other than generally in his application for review. At best it might be argued that such an application has been made in his submissions that the costs order be that there be no order as to costs.

[6] There are further impediments to such an order being made. Section 49(2) requires a court considering such a costs application to have regard to

* the financial resources of the person making the costs application, and

* whether the proceeding involves an issue that affects the public interest in addition to any personal right or interest of the person making the costs application, and

* whether the original review application discloses a reasonable basis for review.

[7] The issues raised in the review application concerned the private interests of the applicant and not the public interest. As the reasons for decision in the s 48 application make abundantly clear, there was no reasonable basis for the application. In the result, the provisions of s 49 do not come into play. Accordingly, as provided for in s 49(4) the ordinary rules of court apply. Rule 689 of the UCPR provides that although costs are in the discretion of the court they should follow the event unless another order is more appropriate. There is no basis for exercising the discretion otherwise than in accordance with the usual rule.

[8] The applicant Shane Barker should pay the costs of and incidental to the application for review and the costs of the application to dismiss the review application of the Queensland Fire and Rescue Authority and Ian Gilbert to be assessed on the standard basis.

Barker v Qld Fire and Rescue Authority & Anor [2000] QSC 395

The applicant for review pay the costs of and incidental to the review application and the application pursuant to s 48 of the Judicial Review Act 1991 of the first and second respondents to be assessed on the standard basis.

JUDICIAL REVIEW - COSTS - whether s 49 of the Judicial Review Act 1991 applies to the issue of costs

Judicial Review Act 1991 (Qld), s 49

Anghel v Minister for Transport (No 2) [1994] QCA 232; [1995] 2 Qd R 454, considered

GC Martin SC for the applicants/first and second respondents

Crown Solicitor for the applicants/first and second respondents

[9] WHITE J: Judgment was given on 3 November 2000 in favour of the respondents, the Queensland Fire and Rescue Authority ("QFRA") and Mr Ian Gilbert, the decision maker ("Mr Gilbert") on their application to dismiss Mr Barker's application for review pursuant to s 48 of the Judicial Review Act 1991 ("the Act").

[10] Submissions about what costs orders, if any, which ought to be made have been provided in writing. QFRA and Mr Gilbert seek their costs. Mr Barker submits that either each party should bear its or his own costs pursuant to s 49(1)(e) or, alternatively, that there is no jurisdiction to make a costs order under the general law.

[11] The ambit of s 49 was considered in Anghel v Minister for Transport (No 2) [1994] QCA 232; [1995] 2 Qd R 454. If the applicant for costs falls within the parameters of s 49 then the provisions of that section will govern the court's discretion as to how the costs ought to be borne. If not, the general rules of court in relation to costs apply, s 49(4).

[12] Section 49 has limited application. It provides that if a costs application is made to a court by either

* a person who has been made a party to a review application under s 28, or

* a person who otherwise is a party to a review application and is not the person whose decision is the subject of the review application,

the court may make an order that another party to the review application indemnify the applicant for costs in relation to the costs of the review application from the time the costs application was made, or, that a party to a review application is to bear only that party's own costs regardless of the outcome of the proceeding.

[13] Mr Barker has not made a costs application other than generally in his application for review. At best it might be argued that such an application has been made in his submissions that the costs order be that there be no order as to costs.

[14] There are further impediments to such an order being made. Section 49(2) requires a court considering such a costs application to have regard to

* the financial resources of the person making the costs application, and

* whether the proceeding involves an issue that affects the public interest in addition to any personal right or interest of the person making the costs application, and

* whether the original review application discloses a reasonable basis for review.

[15] The issues raised in the review application concerned the private interests of the applicant and not the public interest. As the reasons for decision in the s 48 application make abundantly clear, there was no reasonable basis for the application. In the result, the provisions of s 49 do not come into play. Accordingly, as provided for in s 49(4) the ordinary rules of court apply. Rule 689 of the UCPR provides that although costs are in the discretion of the court they should follow the event unless another order is more appropriate. There is no basis for exercising the discretion otherwise than in accordance with the usual rule.

[16] The applicant Shane Barker should pay the costs of and incidental to the application for review and the costs of the application to dismiss the review application of the Queensland Fire and Rescue Authority and Ian Gilbert to be assessed on the standard basis.