The High Court has awarded the State respondents the costs of a failed judicial review, finding no reason to depart from the usual rule that costs follow the outcome.
Mr Justice Herbert’s decision, delivered on 4 November 2005, concerned costs left unresolved after an earlier judgment. The respondents had succeeded in opposing the application on both procedural grounds and its merits. The court had found that the five applicants failed to act promptly in seeking judicial review, as required by the court rules, and had not explained or objectively excused that delay.
The judicial review hearing had lasted nine days. At the end of the judgment, delivered on 7 October 2003, the respondents sought their costs. The judge adjourned that question to allow the parties to consider the judgment and arrange a further hearing.
The applicants argued that the respondents should not be allowed to pursue costs after the passage of time. Their counsel said they had hoped the respondents might not press the application because the dispute arose from an industrial relations disagreement. The applicants believed the Department of Justice’s Prisons Section and its expert advisers, Pearn Kandola, were chiefly responsible for holding Stage I assessments on successive days, at different venues, using identical tests and materials.
The judge found that the applicants had adopted a “wait and see” approach and had not shown that the respondents’ delay in pressing for a hearing date had prejudiced them. The respondents had written in July 2004 seeking dates to deal with costs, and again in July 2005, saying they intended to bring the application at the start of the next court term. The judge said either side could have asked the court to relist the issue if agreement on a date could not be reached. He rejected the claims that the respondents were barred from seeking costs or that allowing the application to proceed would abuse the court process.
In considering costs, the court said the case concerned the rights and obligations of the parties and did not raise a unique legal issue affecting a large section of the public. It found no evidence that either side had taken a wholly unreasonable view of its rights, or that the respondents had acted unfairly or oppressively. The applicants had established no exceptional circumstance justifying departure from the ordinary costs rule.
The court therefore held that the respondents were entitled to the costs of the proceedings. The decision addressed the outstanding costs application; the source does not state the amount of costs or record a separate assessment of them.