J.B. Geraghty & Ors v Dairy Industry Tribunal & Ors [2000] QSC 144

(1) that the decision of the first respondent of 24 January 2000 be set aside, with effect from that date;

(2) that the matter be referred to the first respondent to be determined according to law;

(3) that the first respondent give notice to all producers holding market milk entitlements in the North Queensland supply management region -

(a) of the decision of this Court setting aside the decision of the first respondent;

(b) that the appeals are to be determined by the first respondent according to law;

(c) that any increase in the market milk entitlements of the appellants in the proceedings before the first respondent may adversely affect their own entitlements; and

(d) that they may make submissions and otherwise participate in the appeals to the extent permitted by the first respondent;

(4) that the first order made by Douglas J on 29 March 2000 cease to have effect immediately;

(5) that the moneys held in the trust account of Bottoms English pursuant to the third order made by Douglas J on 29 March 2000 be remitted to Australian Co-operative Foods Limited trading as Malanda Dairy Farmers, to be paid out in accordance with the determination of the second respondent made on 15 December 1998;

(6) that the third respondents pay the applicants' costs of and incidental to the application to be assessed on the standard basis;

(7) that the third respondents be granted an indemnity certificate pursuant to s 15(1) of the Appeal Costs Fund Act 1973;

(8) that there be no order as to the costs of the first respondent;

(9) that there be no order as to the costs of the second respondent.

(1) that the decision of the first respondent of 24 January 2000 be set aside, with effect from that date;

(2) that the matter be referred to the first respondent to be determined according to law;

(3) that the first respondent give notice to all producers holding market milk entitlements in the North Queensland supply management region -

(a) of the decision of this Court setting aside the decision of the first respondent;

(b) that the appeals are to be determined by the first respondent according to law;

(c) that any increase in the market milk entitlements of the appellants in the proceedings before the first respondent may adversely affect their own entitlements; and

(d) that they may make submissions and otherwise participate in the appeals to the extent permitted by the first respondent;

(4) that the first order made by Douglas J on 29 March 2000 cease to have effect immediately;

(5) that the moneys held in the trust account of Bottoms English pursuant to the third order made by Douglas J on 29 March 2000 be remitted to Australian Co-operative Foods Limited trading as Malanda Dairy Farmers, to be paid out in accordance with the determination of the applicant made on 15 December 1998;

(6) that the second respondents pay the applicant's costs of and incidental to the application to be assessed on the standard basis;

(7) that the second respondents be granted an indemnity certificate pursuant to s 15(1) of the Appeal Costs Fund Act 1973;

(8) that there be no order as to the costs of the first respondents.

ADMINISTRATIVE LAW - JUDICIAL REVIEW LEGISLATION - BREACH OF RULES OF NATURAL JUSTICE - ERROR OF LAW - ORDER SETTING ASIDE DECISION FROM DATE ON WHICH MADE - DIRECTIONS - PROCEDURE - COSTS - GENERAL RULE - COSTS FOLLOW THE EVENT - CERTIFICATE FOR COSTS OR OTHER ORDER - CIRCUMSTANCES WHEN GRANTED - Orders consequential upon the decision in two related applications to set aside a decision by the Dairy Industry Tribunal - matter remitted to Tribunal for determination according to law - Tribunal to give proper notice to all interested parties - no costs order against the respondent Tribunal - respondent Tribunal to bear its own costs - unsuccessful milk producer respondents to pay the costs of the applicants in each application (Queensland Dairy Authority and other producers) - those respondents granted indemnity certificates pursuant to Appeal Costs Fund Act 1973

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

Ex parte Blume; Re Osborn (1958) SR (NSW) 334, appl

Griffith University v Ivory [1997] QSC No. 1818 of 1997; 9 May 1997, cons

Hocken & Ors v Pointing [1993] QSC No. 0008 of 1993; 2 December 1993, foll

R v McKay; ex parte Cassaniti [1993] 2 Qd R 95, cons

R v Webster; ex parte Trueline Aluminium Pty Ltd [1987] 1 Qd R 45, cons

Suncorp Insurance and Finance & Anor v Rabnavi Pty Ltd [1994] QSC No. 381 of 1994; 20 July 1994, cons

Appeal Costs Fund Act 1973 s 4, s 15

Judicial Review Act 1991 s 30, s 49

JW Greenwood QC with B Morris for the third respondents (other than NJ Peagham and IR Peagham, GW Malkmus and AM Malkmus, PJ Williams, Dodds Bros, CR Bentley and E Bentley, BI Lees and SI Lees)

No appearance for NJ Peagham and IR Peagham, GW Malkmus and AM Malkmus, PJ Williams, Dodds Bros, CR Bentley and E Bentley, BI Lees and SI Lees

JW Greenwood QC with B Morris for the second respondents (other than NJ Peagham and IR Peagham, GW Malkmus and AM Malkmus, PJ Williams, Dodds Bros, CR Bentley and E Bentley, BI Lees and SI Lees)

No appearance for NJ Peagham and IR Peagham, GW Malkmus and AM Malkmus, PJ Williams, Dodds Bros, CR Bentley and E Bentley, BI Lees and SI Lees

Bottoms English for the third respondents (other than NJ Peagham and IR Peagham, GW Malkmus and AM Malkmus, PJ Williams, Dodds Bros, CR Bentley and E Bentley, BI Lees and SI Lees)

No appearance for NJ Peagham and IR Peagham, GW Malkmus and AM Malkmus, PJ Williams, Dodds Bros, CR Bentley and E Bentley, BI Lees and SI Lees

Bottoms English for the second respondents (other than NJ Peagham and IR Peagham, GW Malkmus and AM Malkmus, PJ Williams, Dodds Bros, CR Bentley and E Bentley, BI Lees and SI Lees)

No appearance for NJ Peagham and IR Peagham, GW Malkmus and AM Malkmus, PJ Williams, Dodds Bros, CR Bentley and E Bentley, BI Lees and SI Lees

[1] WILSON J: Counsel for the Authority, Geraghty and others, and McDowall and others have made written submissions in relation to orders consequential upon my determination that the decision of the Tribunal should be set aside and on costs.

[2] It is appropriate that the decision of the Tribunal be set aside with effect from 24 January 2000, and that the matter be remitted to the Tribunal for determination according to law, with directions for giving all persons who may be affected by the Tribunal's decision proper notice of the proceeding and the opportunity to be heard in relation to it.

[3] On 29 March 2000 Mr Justice Douglas made orders in each application to the effect that McDowall and others should cause to be paid into their solicitors' trust account a "differential amount" of their market milk entitlement payments from 1 March 2000, being the difference between payments to them in accordance with the Tribunal's decision and payments to them in accordance with the Authority's decision. That differential amount was ordered to be held in trust until further order.

[4] Counsel for McDowall and others has asked me to make orders having the effect of continuing the orders made by Mr Justice Douglas until the Tribunal or the Court orders otherwise. He submitted that unless such orders are made, if the Tribunal's further decision is, in whole or in part, to the same effect as its initial decision, there will be no available fund from which an adjusting reimbursement could be made to the successful appellants. In his submission I have power to make such an order under s 30(1)(d) of the Judicial Review Act 1991 which is in the following terms:-

"Powers of the court in relation to applications for order of review

30.(1) On an application for a statutory order of review in relation to a decision, the court may make all or any of the following orders -

(d) an order directing any of the parties to do, or to refrain from doing, anything that the court considers necessary to do justice between the parties."

[5] McDowall and others succeeded before the Tribunal at the expense of other producers who were not given a proper opportunity to be heard. Only some of those other producers were parties to the judicial review proceedings (Geraghty and others, the applicants in no S 1466 of 2000). The differential amount includes amounts which would otherwise have been payable to producers who were not heard on the appeal before the Tribunal or on the judicial review application before me. Accordingly, I am not prepared to make the orders sought, even if I have power to do so (something which I do not find it necessary finally to determine). The moneys should be paid out in accordance with the Authority's determination made on 15 December 1998.

(a) the solicitor for the Tribunal submitted that there should be no order against the Tribunal (in written submissions dated 13 March 2000);

(b) counsel for the Authority submitted that in application no S 1524 of 2000 its costs should be paid by McDowall and others;

(c) counsel for Geraghty and others submitted that in application no S 1466 of 2000 their costs should be paid by McDowall and others; and

(d) counsel for McDowall and others submitted that his client's costs should be paid by the Tribunal, or alternatively by the Authority, and that the Authority and Geraghty and others should bear their own costs; alternatively, all parties should bear their own costs.

[7] Section 49 of the Judicial Review Act provides -

49.(1) If an application (the "costs application" ) is made to the court by a person (the "relevant applicant" ) who -

(b) has been made a party to a review application under section 28; or

(c) is otherwise a party to a review application and is not the person whose decision, conduct, or failure to make a decision or perform a duty according to law, is the subject of the application;

(d) that another party to the review application indemnify the relevant applicant in relation to the costs properly incurred in the review application by the relevant applicant, on a party and party basis, from the time the costs application was made; or

(e) that a party to the review application is to bear only that party's own costs of the proceeding, regardless of the outcome of the proceeding.

(2) In considering the costs application, the court is to have regard to -

(ii) any person associated with the relevant applicant who has an interest in the outcome of the proceeding; and

(b) 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; and

(c) if the relevant applicant is a person mentioned in subsection (1)(a) - whether the proceeding discloses a reasonable basis for the review application; and

(d) if the relevant applicant is a person mentioned in subsection (1)(b) or (c) - whether the case in the review application of the relevant applicant can be supported on a reasonable basis.

(3) The court may, at any time, of its own motion or on the application of a party, having regard to -

(a) any conduct of the relevant applicant (including, if the relevant applicant is the applicant in the review application, any failure to prosecute the proceeding with due diligence); or

(b) any significant change affecting the matters mentioned in subsection (2);

revoke or vary, or suspend the operation of, an order made by it under this section.

(4) Subject to this section, the rules of court made in relation to the awarding of costs apply to a proceeding arising out of a review application.

(5) An appeal may be brought from an order under this section only with the leave of the Court of Appeal.

(a) an application for a statutory order of review under section 20, 21 or 22; or

(b) an application for review under section 43; or

(c) an appeal to the Court of Appeal in relation to an order made by the Court on an application mentioned in paragraph (a) or (b)."

[8] An order may be made under s 49(1) at any stage of a judicial review application, even after final judgment: Anghel v Minister for Transport (No. 2) [1994] QCA 232; [1995] 2 Qd R 454 at 459; Hocken & Ors v Pointing [1993] QSC No. 0008 of 1993; 2 December 1993. I decline to make an order under that provision in favour of McDowall and others for two reasons. First, the proceedings concerned private commercial interests rather than the public interest, and second, there was no reasonable basis for supporting the Tribunal's exercise of power, at least insofar as it failed to accord procedural fairness to interested persons.

[9] The applications for costs orders fall to be determined under rule 689 of the Uniform Civil Procedure Rules. (See s 49(4) of the Judicial Review Act.) Ordinarily costs should follow the event.

[10] Although I have found that the Tribunal erred in law in failing to accord procedural fairness and in its interpretation of relevant provisions of the Dairy Industry Act 1993, there is no evidence of serious misconduct, corruption, gross ignorance or perversity on its part. Accordingly, I am not prepared to make an order for costs against it: Ex parte Blume, Re Osborn (1958) SR (NSW) 334 at 339.

[11] In each appeal the Tribunal should bear its own costs.

[12] In application no S 1466 of 2000 McDowall and others should pay the costs of Geraghty and others, and in application no S 1524 of 2000 McDowall and others should pay the costs of the Authority. Otherwise there should be no orders as to costs.

[13] After the parties were invited to make written submissions on the application of the provisions of the Appeal Costs Fund Act 1973 to any orders for costs that might be made against McDowall and others, McDowall and others sought indemnity certificates pursuant to s 15 of that Act. The solicitor for the Tribunal submitted that it is within the Court's power to grant such a certificate, and that these are appropriate circumstances in which to do so. Neither Geraghty and others nor the Authority wished to make submissions on the point, although counsel for Geraghty and others helpfully referred me to some relevant authorities.

[14] Section 15 of the Appeal Costs Fund Act provides -

15.(1) Where an appeal against the decision of a court -

on a question of law succeeds, the Supreme Court may, upon application made in that behalf, grant to any respondent to the appeal an indemnity certificate in respect of the appeal."

[15] "Appeal" is defined in s 4 as -

""appeal" includes an order to review, a case stated for the opinion or determination of a superior court on a question of law, a question of law reserved in the form of a special case for the opinion of a superior court, a motion for a new trial and any other proceeding in the nature of an appeal"

The definition is inclusive, and it has been held to include proceedings for the issue of certiorari: R v Webster, ex parte Trueline Aluminium Pty Ltd [1987] 1 Qd R 45; R v McKay; ex parte Cassaniti [1993] 2 Qd R 95.

""court" includes any board, other body or person from whose decision there is an appeal to a superior court on a question of law or which may state a case for the opinion or determination of a superior court on a question of law or reserve any question of law in the form of a special case for the opinion of a superior court"

It has been held to include quasi-judicial tribunals such as the Small Claims Tribunal (R v Webster, ex parte Trueline Aluminium Pty Ltd), the Retail Shop Leases Tribunal (Suncorp Insurance and Finance & Anor v Rabnavi Pty Ltd [1994] QSC No. 381 of 1994; 20 July 1994, and the Anti-Discrimination Tribunal (Griffith University v Ivory [1997] QSC No. 1818 of 1997; 9 May 1997).

[17] Bearing in mind that the legislation is remedial and so to be given a beneficial interpretation, I consider that an application to this Court for judicial review of a decision of the Dairy Industry Tribunal on the grounds of error of law and breach of the rules of natural justice is a proceeding in respect of which a certificate may be granted under s 15. It is appropriate to grant McDowall and others a certificate in respect of each application.

[18] In application no S 1466 of 2000 I make the following orders:-

(1) that the decision of the first respondent of 24 January 2000 be set aside, with effect from that date;

(2) that the matter be referred to the first respondent to be determined according to law;

(3) that the first respondent give notice to all producers holding market milk entitlements in the North Queensland supply management region -

(a) of the decision of this Court setting aside the decision of the first respondent;

(b) that the appeals are to be determined by the first respondent according to law;

(c) that any increase in the market milk entitlements of the appellants in the proceedings before the first respondent may adversely affect their own entitlements; and

(d) that they may make submissions and otherwise participate in the appeals to the extent permitted by the first respondent;

(4) that the first order made by Douglas J on 29 March 2000 cease to have effect immediately;

(5) that the moneys held in the trust account of Bottoms English pursuant to the third order made by Douglas J on 29 March 2000 be remitted to Australian Co-operative Foods Limited trading as Malanda Dairy Farmers, to be paid out in accordance with the determination of the second respondent made on 15 December 1998;

(6) that the third respondents pay the applicants' costs of and incidental to the application to be assessed on the standard basis;

(7) that the third respondents be granted an indemnity certificate pursuant to s 15(1) of the Appeal Costs Fund Act 1973;

(8) that there be no order as to the costs of the first respondent;

(9) that there be no order as to the costs of the second respondent.

[19] In application no S 1524 of 2000 I make the following orders:-

(1) that the decision of the first respondent of 24 January 2000 be set aside, with effect from that date;

(2) that the matter be referred to the first respondent to be determined according to law;

(3) that the first respondent give notice to all producers holding market milk entitlements in the North Queensland supply management region -

(a) of the decision of this Court setting aside the decision of the first respondent;

(b) that the appeals are to be determined by the first respondent according to law;

(c) that any increase in the market milk entitlements of the appellants in the proceedings before the first respondent may adversely affect their own entitlements; and

(d) that they may make submissions and otherwise participate in the appeals to the extent permitted by the first respondent;

(4) that the first order made by Douglas J on 29 March 2000 cease to have effect immediately;

(5) that the moneys held in the trust account of Bottoms English pursuant to the third order made by Douglas J on 29 March 2000 be remitted to Australian Co-operative Foods Limited trading as Malanda Dairy Farmers, to be paid out in accordance with the determination of the applicant made on 15 December 1998;

(6) that the second respondents pay the applicant's costs of and incidental to the application to be assessed on the standard basis;

(7) that the second respondents be granted an indemnity certificate pursuant to s 15(1) of the Appeal Costs Fund Act 1973;

(8) that there be no order as to the costs of the first respondent.