CMB v Mental Health Tribunal [2021] TASFC 7 | Case summary

On 26 March 2021 this Court dismissed an appeal against a decision of Blow CJ concerning the meaning of the term "likely" when used in s 40(b) of the Mental Health Act 2013 [1]. The Court found that Blow CJ was correct to determine that "likely" means something that might well happen, rather than "more probable than not" as was contended by the appellant.
The first respondent submitted to the jurisdiction of the Court and played no part in the appeal. The second respondent, the Attorney-General, properly joined the first instance appeal as contradictor and thereby became a party to the appeal. The second respondent applies for an order that the appellant pay the costs of the unsuccessful appeal. The appellant submits that a different order should be made.
The power to award costs is a discretionary power. In this jurisdiction it derives from the Supreme Court Civil Procedure Act 1932, s 12, and the Supreme Court Rules 2000, r 672(6). The most important principle by reference to which the discretion is to be exercised is that the successful party is generally entitled to his or her costs by way of indemnity, or at least partial indemnity, against the expense of litigation that should not, in justice, have been visited upon that party.[2] The aim of awarding costs as between the parties to litigation is not punitive, but to compensate to at least some extent the successful party for the legal costs incurred by reason of the proceedings.[3]
The appellant submits that this Court should depart from the usual exercise of the costs discretion in favour of the successful party for three principal reasons:
- firstly, because of what is said to be a significant public interest in bringing the appeal to clarify the operation of the legislation;
- secondly, because the second respondent was partially unsuccessful in that its submission that the Court did not have power to make the declaration sought was rejected; and
- thirdly, because the compensatory aspect of a costs order has no "utility" when both parties to the litigation are "effectively statutory bodies established by the executive".
In my opinion, none of the contentions represent a proper basis, in this case, for depriving the second respondent of an order for costs.
As is pointed out by Professor Dal Pont[4], courts have repeatedly rejected the notion that public interest litigants are subject to costs regimes that are any different to those relating to other litigants, and the usual costs order remains that costs follow the event. As was pointed out by Marshall J in Wilderness Society Inc v Turnbull[5], "the real issue is not what is considered to be in the public interest or whether public interest considerations are a recognised exception to the usual rule, but rather, whether it can be said that there are sufficient public interest related reasons connected with or leading up to the litigation that warrant a departure from or outweigh the important consideration that a wholly successful respondent would ordinarily be awarded its costs".
I am not persuaded that any public interest considerations involved with this appeal are sufficient to justify departure from the usual rule. The appellant submits that bringing the appeal was in the public interest because it resulted in clarification of the law for the many people who fall within the operation of the Act, and for those who exercise functions and powers pursuant to its terms. The appellant contends that the appeal raised a question of statutory construction which was of wider legal significance or importance. However, the appeal did not involve a particularly novel point or concern a line of authority. It is very commonly the case that litigation about the meaning of a statutory provision has a public interest going beyond the interests of the parties. This is not a case of such significance or general application that would be expected of a proceeding in the nature of a test case, or the type of exceptional case in which departure from the usual rule as to costs is justified on public interest grounds.[6] Moreover, in this case, the appeal was not essential for that purpose. The appellant chose to appeal against a decision of the Chief Justice which was adverse to her at first instance. His Honour's correct interpretation of the legislation provided the guidance the appellant submits was required, and the challenge to its correctness was unsuccessful.
Although the Act has application to many people, the appeal was brought by the appellant to determine its operation as it applied to her and may apply to her in the future. The appeal affected her private interests. The appeal standing provision in the Mental Health Act, s 174, is to be distinguished from the standing provisions thought to have been of significance in litigation concerning, for example, environmental or heritage protection litigation. In such cases, the very broad nature of the standing provision has been taken to invite a broader public participation, a factor which may justify departure from the usual costs rule.[7] Such considerations carry much less weight here. Under the Mental Health Act, appeals may only be brought by a person who is a party to any proceedings of the Tribunal, or if the person is aggrieved by any determination of the Tribunal made otherwise than in proceedings.[8] Moreover, an appeal from a decision of the Tribunal may be only be brought as of right on a question of law, or on any other question, only with the leave of the Supreme Court.[9]
1. The second consideration raised by the appellant arises from the submission made by the second respondent as to the discretionary and jurisdictional questions concerning the grant of declaratory relief. Wood J was the only member of the Court to determine the jurisdictional issue and found that this Court would have had jurisdiction to make a declaratory order. The other members of the Court determined that it was unnecessary to determine the jurisdictional point. No members of the Court considered the discretionary question. The appellant's contention that the jurisdictional argument presented by the second respondent was clearly rejected by the Court is not correct. The appellant submits that, had the jurisdiction issue not been raised by the second respondent, the appeal could have been conducted "more expeditiously", and asks the Court to take that factor into account in the exercise of the costs discretion.
A successful party who has failed on certain issues either of fact or law may not only be deprived of the costs of those issues, but may be ordered as well to pay the other party's costs of them.[10] However, even if it could be said that the second respondent's contentions about jurisdiction did not succeed, it would not in this case justify departure from the usual costs order. It is often the case that successful parties fail on particular issues along the way, and an unsuccessful party cannot expect the favourable exercise of a costs discretion just because of success on some issues.[11] In my assessment, the issue raised by the second respondent did not unduly or unreasonably add to the length or cost of the appeal such as to attract an adverse costs consequence for the second respondent.
The final matter raised by the appellant concerns the "utility" of a costs order. The appellant submits that "both the Legal Aid Commission of Tasmania and the office of the Solicitor-General are established by statute", and that "the Court might consider that the movement of taxpayer money from one Tasmanian statutory body to another to be an accounting exercise that is of little practical utility and in light of the public interest in bringing the appeal is not warranted." The submission should not be accepted. It may at once be pointed out that neither the Legal Aid Commission of Tasmania nor the Solicitor-General were parties to the appeal. No costs order would be made against either entity. In the event that a court makes an order in a proceeding directing a person assisted by the Legal Aid Commission to pay costs incurred by another party to the proceeding, either the assisted person or the other party may request the Commission to pay to the other party on behalf of the assisted person all or part of the costs.[12] Whether such a request is met is a matter to be determined by the Commission under its own guidelines.[13]
Moreover, the status of the second respondent as a public authority or the holder of public office does not serve to oust the usual costs rule.[14] The respondents did nothing to invite the appeal, and it would be unjust to deprive the second respondent of an order for costs on the basis that the Attorney exercises a public function or is represented by the Solicitor-General.[15]
I would order that the appellant pay the second respondent's costs of the appeal.

[2] Northern Territory v Sangare [2019] HCA 25, 265 CLR 164 at [24]- [25] citing Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 at 541-542, and at 558-559 and Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at 96 [65], 121 [134].

CMB v Mental Health Tribunal

At a glance

Court

Decision date

Before

Source

Judgment (25 paragraphs)

CMB v Mental Health Tribunal (No 2) [2021] TASFC 7 (19 May 2021)

Parties

Cases Cited (3)