Procedure - Costs - General Rule - Costs follow the event - Costs of issues - Exercise of discretion - Issue easily distinguishable.

J D Investments Pty Ltd v Todbern Pty Ltd [2000] NSWSC 432; Burnie Port Corporation Pty Ltd v Bank of Western Australia Ltd and Another [2003] TASSC 132; Sorell Council v State of Tasmania (No 2) [2004] TASSC 101; Cretazzo v Lombardi (1975) 13 SASR 4, followed.

Judgment Number: [2004] TASSC 112

1 This decision deals with costs arising from the appellant's successful appeal against findings and consequential orders made by the respondent in its capacity as a disciplinary tribunal ("the Tribunal"), pursuant to the Pharmacists Registration Act 2001 ("the Act"). The appeal is the subject of three published decisions: Adamson v The Pharmacy Board of Tasmania [2004] TASSC 32; Adamson v The Pharmacy Board of Tasmania (No 2) [2004] TASSC 82 and Adamson v The Pharmacy Board of Tasmania (No 3) [2004] TASSC 88. The appellant failed in relation to a preliminary issue he raised as to the nature of the right of appeal conferred by the Act, s60(1)(g). That issue is the subject of the first decision. For the reasons detailed in the second decision, the appellant succeeded in having the findings and consequential orders of the Tribunal quashed, albeit that pursuant to the Act, s62(1), I found him guilty of unprofessional conduct -- not professional misconduct as is erroneously recorded in the first line of my third decision. Although I quashed the decision of the Tribunal, I consider it appropriate to re-impose the order the Tribunal made in relation to the costs of the hearing before it, that is, an order that the appellant pay the respondent's costs of the disciplinary proceedings before the Tribunal, agreed at $7,100. Counsel for the appellant did not contest the making of this order.

2 The result of the hearing on 10 August 2004, which is the subject of my second decision, vindicated the appellant's appeal insofar as it established error on the part of the Tribunal and changed the outcome of the disciplinary proceedings brought against him from a finding of professional misconduct to a finding of unprofessional conduct, the former being regarded as a more grave categorisation of misconduct than the latter. This change in the categorisation of the appellant's conduct necessitated a further hearing on 19 August 2004 in order to determine what consequential orders should be made in the light of the change. Counsel for the respondent submits that the appellant should not be awarded the costs of these hearings as his success was pyrrhic in so far as my findings and the consequential orders I made did not differ markedly from the findings and orders made by the Tribunal. I do not agree. A finding of unprofessional conduct, unlike a finding professional misconduct, does not carry with it the stigma that the conduct was disgraceful or dishonest. This is a significant distinction and as to these hearings I am not persuaded that the Court should depart from the ordinary rule that costs should follow the event.

3 Counsel for the appellant submits that as his client succeeded on the primary and substantive issue raised by the appeal the respondent should also be ordered to pay the appellant's costs of the preliminary issue on which the appellant failed. Counsel for the respondent submits otherwise and seeks an order for costs against the appellant referable to the preliminary issue. Ordinarily the Court awards the costs of the proceedings to the successful party without attempting to differentiate between those issues on which the party succeeded and those on which the party failed, unless a particular issue is clearly separate; J D Investments Pty Ltd v Todbern Pty Ltd [2000] NSWSC 432 [4], Burnie Port Corporation Pty Ltd v Bank of Western Australia Ltd and Another [2003] TASSC 132 [27] and Sorell Council v State of Tasmania (No 2) [2004] TASSC 101 [5]. The Court should be circumspect about acquiescing to an application for an order for costs that distinguishes between issues. As observed by Jacobs J in Cretazzo v Lombardi (1975) 13 SASR 4 at 16:

"... I would wish to sound a note of cautious disapproval of applications, which are being made with increasing frequency, to apportion costs according only to the success or failure of one party or the other on the various issues of fact or law, which arise in the course of a trial. ... But trials occur daily in which the party, who in the end is wholly or substantially successful, nevertheless fails along the way on particular issues of fact or law. The ultimate ends of justice may not be served if a party is dissuaded by the risk of costs from canvassing all issues, however doubtful, which might be material to the decision of the case. There are, of course, many factors affecting the exercise of the discretion as to costs in each case, including in particular, the severability of the issues, and no two cases are alike. I wish merely to lend no encouragement to any suggestion that a party against whom the judgment goes ought nevertheless to anticipate a favourable exercise of the judicial discretion as to costs in respect of issues upon which he may have succeeded, based merely on his success in those particular issues."

4 The preliminary issue on which the respondent succeeded can readily be distinguished from those aspects of the appeal on which the appellant succeeded and the determination of the preliminary issue was unnecessary for, and in no way connected to, that success. In these circumstances, notwithstanding the caution referred to, I consider it appropriate to order that the appellant pay the respondent's costs of the preliminary issue.

1 That the appellant pay the respondent's costs of the disciplinary proceedings before the Tribunal agreed at $7,100.

2 That the appellant pay the respondent's costs of and incidental to the determination of the preliminary issue heard on 22 March 2004.

3 That the respondent pay the appellant's costs of and incidental to the hearings on 10 August 2004 and 19 August 2004, and that an indemnity certificate pursuant to the Appeal Costs Fund Act 1968, s8(1), be issued to the respondent in respect of this aspect of the appeal.