A community cricket club in the Gold Coast Hinterland must pay indemnity costs after taking flawed advice from generative AI to litigate in the Supreme Court.
Beechmont Cricket Club Inc, represented by its president, challenged a decision made in March by Justice Catherine Muir in Brisbane’s Supreme Court, which dismissed the club’s application for statutory review and ordered it to pay to costs on an indemnity basis.
The club had sought a statutory review of the alleged failure by Scenic Rim Regional Council to make a decision under Section 57 of the Land Act 1994 (Qld), in relation to granting a trustee lease to Beechmont Recreation Arts & Sports (BRASA) over Graceleigh Park (where the club plays) without compliance with the 2010 Land Management Plan.
The club president was given leave to appear at the Court of Appeal hearing in the Brisbane Supreme Court on 28 August.
Appeal Justices John Bond, Susan Brown and Shane Doyle dismissed the application for leave to appeal, and ordered the club to pay costs on the standard basis.
In their reasons published last month, Justice Bond pointed out that the club’s president had no legal qualifications, and had taken legal advice from a generative AI tool because the incorporated association could not afford the ongoing expense of engaging a practitioner.
“It may be acknowledged that the applicant’s written submissions to this Court were not characterised by some of the deficiencies which often bedevil submissions created by self-represented litigants through the use of Gen AI tools, in that they contained neither hallucinations nor confabulations nor misleading statements of fact,” he said.
“The problem for the applicant was that they failed to grapple with the critical point.”
The application was explicitly founded on s 22 of the Judicial Review Act 1991 (Qld), which “required the club to demonstrate that the council was under a duty to make a decision and that the applicant was aggrieved of the council’s failure to comply with its duty”.
“The primary judge’s reasons for judgment had explained the problem to the applicant,” Justice Bond said.
“The applicant refused to accept the correctness of her Honour’s decision and sought leave to appeal to this Court.
“But, unaccountably, the applicant’s written submissions to this Court made no attempt to formulate an argument that the proper construction of the Land Act or any other enactment imposed a duty on the council to make any relevant decision.
“The applicant, by its president, was not able to advance any oral submissions which improved on that position. Accordingly, the applicant’s argument failed.
“The applicant’s misconceived forays into litigation in the trial division and in this Court have resulted in two failed applications and two sets of adverse costs orders.
“Whether the applicant’s decision to litigate in the manner it did was due to its reliance on advice obtained from a Gen AI tool is unclear. But if it was, then that choice was regrettable.”
Justice Brown said the president was candid with the Court that he had used AI tools to help formulate the club’s argument.
“Sadly for the applicant, the present case is a salutary lesson in the pitfalls in using AI absent legal skills,” she said.
“While the product may sound convincing, it may, as in this case, present an entirely flawed argument.”
She said there was no arguable error in the primary decision, which was “plainly correct”.
“The council had no duty to make a decision as to whether the statutory conditions governing trustee leasing of the reserve land under the Land Act, including s 57, were satisfied until it determined that it was going to grant a trustee lease to which s 57(6) applied,” she said.
“No decision had yet been made by the council to grant a trustee lease nor was there any obligation to do so.”
The club also argued that the primary judge failed to accord procedural fairness to the club, and erred in awarding indemnity costs against it.
As to the issue of procedural fairness, Justice Brown said that before the hearing, the council had written to the club, informing it that the application had no reasonable basis.
She said BRASA had also written to the club, twice, stating that there was no basis upon which it had been made party to the proceedings.
Further, at the hearing, the president was allowed to make submissions and was not prevented from making further submissions, she said.
“The primary judge told the parties in plain terms she would adjourn the matter and deliver a decision later that day,” she said.
“The fact that (the president) did not appreciate that and might have wished to make further submissions, a matter not communicated to the primary judge, was not a lack of procedural fairness.”
As to the order to pay indemnity costs, the club contended that the proposed appeal raised an important costs issue concerning the award of indemnity costs “against a small community sporting club in a public-law proceeding concerning trustee land, public reserve governance, access to governing documents, disclosure/mediation history, and public-authority conduct consistent with the Queensland Model Litigant Principles”.
Justice Brown said the club was put on notice by both the council and BRASA as to the worth of its bid, and “had a reasonable opportunity to not pursue the judicial review application but refused to do so”.
Read the case here.
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