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The appellant, Andrew Jamie Orr, asked the Court to order that each party bear its own costs. The respondent, the Director of Proceedings on behalf of the Health Ombudsman, sought an order that the appellant pay the respondent’s costs ([1]). The Court ultimately made that order ([7]).

The judgment identifies five grounds relied on by the appellant. In summary, he relied on alleged unlawful conduct, the claimed public importance and novelty of a statutory-construction issue, the significance of the administration of disciplinary action against health professionals, the usual costs position in the Queensland Civil and Administrative Tribunal, and asserted unfairness ([3]–[6]). The Court considered each ground in the context of the ordinary costs rule.

The underlying matter concerned disciplinary proceedings referred by the respondent to QCAT. The Court described the appeal, on its face, as pursued to advance the appellant’s personal interest in defeating, or perhaps delaying, resolution of those proceedings ([4]). That observation formed part of the Court’s assessment of the claim that the appeal was principally about public rights and obligations.

The procedural details supplied with the judgment identify the originating tribunal matter as QCAT No 222 of 2019, and the originating decision as [2023] QCAT 61. The Court of Appeal judgment was delivered on 4 June 2024, following a hearing on 21 February 2024. The present judgment is a “Further Order” addressing costs after the parties exchanged submissions pursuant to leave granted in the earlier Court of Appeal decision ([1]).

Why the court decided this way

The starting point was r 681 of the Uniform Civil Procedure Rules 1999 (Qld). The Court stated that appeal costs are within its discretion, but “follow the event unless the Court orders otherwise” ([2]). Since the appellant had been wholly unsuccessful, the ordinary outcome favoured an order for the respondent’s costs.

The Court also described the limits on that discretion. It must be exercised judicially and consistently with the purpose of the power. Although the Court can order otherwise, costs will generally follow the event unless “special or exceptional circumstances” warrant depriving a successful party of its costs ([2]). The Court cited Courtney v Chalfen [2021] QCA 25, Speets Investment Pty Ltd v Bencol Pty Ltd (No 2) [2021] QCA 39, and Villan v The Body Corporate for The Winston (Cairns) Community Title Scheme 37263 [No 2] [2024] QCA 54 in support of that statement. This judgment does not set out the facts or detailed reasoning of those cases, so its use of them should be understood as citation of authority for the costs approach stated in paragraph 2.

The first ground included the appellant’s assertions that there had been “unlawful conduct informing the appeal” and that the appeal was a legitimate attempt to hold the respondent accountable for it. The Court’s answer was limited and specific: there had been no finding of unlawful conduct ([3]). It did not make a finding in this costs judgment that unlawful conduct had or had not occurred. Rather, it declined to treat an unestablished allegation as a circumstance supporting the departure sought.

The appellant next relied on the claimed importance and novelty of a statutory-construction issue. He argued that the outcome on that issue qualified his success and concerned public rights and obligations rather than his private interests ([4]). The Court assessed the character of the proceedings by reference to their apparent practical purpose. On the face of the proceedings, it considered that the appeal was pursued to advance the appellant’s personal interest in defeating or delaying the disciplinary proceedings referred to QCAT ([4]). The Court did not state a general rule that an issue of statutory construction, even if important or novel, can never justify a different costs order. It held that the appellant’s submission did not justify one in this appeal.

The claimed significance of the appeal for the administration of disciplinary actions against health professionals was addressed separately. The Court said that this did not justify departing from the usual order that costs follow the event ([5]). That conclusion is application-specific: the judgment does not explain what factual or legal features would be enough to make another disciplinary-administration appeal exceptional.

The appellant also pointed to s 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), saying that the usual order in the Tribunal is that each party bears their own costs. The Court was not persuaded that the tribunal’s costs position carried sufficient relevance to the costs of this appeal. It said that, even if it had any present relevance, it was not a circumstance warranting the successful respondent being deprived of costs ([5]). The judgment does not set out the full text or operation of s 100, and its conclusion should not be extended beyond the point it decided.

Finally, the appellant argued that ordering him to pay costs would be unfair and inconsistent with the compensatory principle. The Court said the reason why this would be so had not been explained. It also treated the argument as dependent on the earlier grounds, which it had rejected ([6]). It therefore rejected the unfairness submission as well.

Having found no sufficient basis to depart from the usual costs position, the Court ordered the appellant to pay the respondent’s costs ([7]).

Before and after state of the law

This judgment does not purport to change the general law of costs. It applies the rule it identifies in r 681: costs of an appeal are discretionary but ordinarily follow the event ([2]). It also applies the stated principle that special or exceptional circumstances are generally required to deprive a successful party of costs ([2]).

The judgment’s contribution is therefore best understood as an application of those principles to the appellant’s particular grounds. It shows that, on the facts and submissions before this Court, an allegation of unlawful conduct without a finding, a claim of public importance, a claimed issue of significance to professional discipline, the usual costs position in QCAT, and an unexplained assertion of unfairness did not establish a reason to depart from the ordinary result ([3]–[6]).

The judgment does not identify any change to r 681 or s 100, nor does it set out a new test for costs. It does not say that the grounds advanced could never be relevant in another matter. Its reasoning is narrower: the submissions made here did not justify ordering each side to bear its own costs.

The authorities cited in paragraph 2 are presented as support for the general costs approach. The judgment does not separately analyse or distinguish them. Accordingly, a reader can reliably identify the principle for which they are cited in this judgment, but cannot use this judgment alone to reconstruct each cited case’s reasoning or the full boundaries of the principle.

Key passages with plain-English translation

“The costs of the appeal are in the discretion of the Court but follow the event unless the Court orders otherwise” ([2]).
In plain English, the Court has power to decide costs differently, but the usual starting point is that the unsuccessful party pays the successful party’s costs.

“The discretion must be exercised judicially and consistently with the purpose of the power” ([2]).
The Court’s ability to make a different costs order is not arbitrary. It must apply the discretion according to the relevant legal principles and the purpose of the costs power.

“Costs will generally follow the event unless there are special or exceptional circumstances which warrant depriving a successful party of its costs” ([2]).
The losing party’s failure does not mechanically decide every costs question, but a departure from the ordinary outcome needs a sufficient basis. The judgment describes that basis in terms of special or exceptional circumstances.

“There has been no finding that there was any unlawful conduct” ([3]).
The Court did not treat the appellant’s allegation as an established fact. This sentence does not itself determine whether the alleged conduct occurred; it identifies the absence of a finding as relevant to the costs submission.

“Upon the face of the proceedings … [the appeal] was pursued to advance the personal interest of the appellant” ([4]).
The Court looked at the apparent practical purpose of the appeal, rather than accepting that the issue was solely or principally about public rights and obligations. Its conclusion was tied to the proceedings before it and the disciplinary matter’s potential delay or defeat.

“If that fact has any present relevance at all, it is not a circumstance which warrants depriving the successful respondent of costs” ([5]).
The Court left open whether QCAT’s usual costs approach had any relevance to the appeal costs issue. It nevertheless concluded that this point did not justify denying the respondent its costs.

“Why that might be so is not explained” ([6]).
The Court considered that the appellant had not explained how the costs order would produce the asserted unfairness. It also regarded that argument as depending on the other submissions it had rejected.

What fact patterns trigger this precedent

The decision is relevant to costs submissions following an unsuccessful Queensland appeal where a party seeks to avoid the usual order that costs follow the event. In particular, it illustrates the Court’s treatment of arguments that include:

• an allegation of unlawful conduct that has not resulted in a finding;
• a claim that the appeal involved a novel or important statutory issue;
• an assertion that the matter affected the administration of disciplinary proceedings;
• reliance on a different costs approach said to apply in the originating tribunal; and
• a general claim of unfairness that is not explained independently of the other rejected grounds.

The judgment does not establish that these arguments are always irrelevant. It records that they were insufficient in this case. The Court’s assessment of the appeal’s apparent purpose was also fact-specific: it viewed the appeal as advancing the appellant’s personal interest in defeating or delaying disciplinary proceedings ([4]).

A careful application of the decision would therefore distinguish between identifying the kinds of submissions the Court considered and treating them as automatic rules. The judgment does not specify what evidence or circumstances might make an allegation of unlawful conduct relevant to costs, what degree of public importance could justify a departure, or what explanation of unfairness might be sufficient. Those questions remain beyond the propositions resolved in this short costs judgment.

How later courts have treated it

The judgment is dated 4 June 2024. The material provided contains no later judicial decisions discussing or applying Orr [No 2] [2024] QCA 106. It is therefore not possible, on this source alone, to describe how later courts have treated this particular decision.

The judgment itself refers to Orr v Director of Proceedings on Behalf of the Health Ombudsman [2024] QCA 67, which preceded this further-order judgment. Paragraph 1 says that leave to exchange costs submissions had been granted in that earlier decision. The present judgment does not analyse the earlier decision’s substantive reasoning; it records the procedural basis for the costs submissions.

The Court also cites Courtney v Chalfen, Speets Investment Pty Ltd v Bencol Pty Ltd (No 2), and Villan v The Body Corporate for The Winston (Cairns) Community Title Scheme 37263 [No 2] as authority for the general costs principles in paragraph 2. Those decisions pre-date this judgment, so they are not examples of later treatment of it. No details about their subsequent treatment are supplied here.

Still-open questions

This judgment resolves the costs order between these parties but leaves several broader questions unanswered. It does not define what qualifies as “special or exceptional circumstances” beyond applying that formulation to the submissions before it ([2]–[6]). It does not identify the evidence that might have been needed to establish the alleged unlawful conduct, and it makes no finding on whether such conduct occurred ([3]).

Nor does the judgment set a general threshold for when a novel statutory issue or an issue of public importance could justify an order that each party bear their own costs. The Court rejected the appellant’s argument in its circumstances, including its view of the appeal’s apparent personal purpose ([4]). It did not hold that public importance can never affect costs.

The Court also does not explain in detail how s 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) interacts with appellate costs under r 681. It says only that QCAT’s usual costs position, even if relevant, did not warrant depriving the respondent of costs in this appeal ([5]).

Finally, the judgment does not specify what reasoning or evidence would make an unfairness submission sufficiently particularised. It says that the appellant did not explain why the proposed order would cause the asserted unfairness, and that the argument depended on grounds already rejected ([6]). These limits matter: the decision is a concise application of the ordinary costs principle, not an exhaustive guide to every circumstance in which an appellate court might depart from it.

This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have a qualified Australian lawyer check it.