Anderson v Stonnington City Council [No 2] [2020] VSCA 238

1 The parties have filed submissions in relation to the costs of the appeal which this Court dismissed on 7 September 2020.[1] We shall assume familiarity with the Court's earlier reasons.

2 The successful respondent council seeks its costs of the application for leave to appeal and the appeal, including any reserved costs, on the standard basis. It notes that it was successful in resisting the appeal on every ground which was advanced and it submits that costs should be awarded in accordance with the well-established principle that the unsuccessful party is usually ordered to pay the costs of the successful party.[2]

3 The appellants submit that the Court should decline to award costs or, alternatively, exercise its discretion so as to reduce the quantum of costs payable by them. They point to the fact that the matter concerned 'public rights and duties involving the application and administration of planning schemes across the State', noting that the issues were 'novel, complex, and of wide public importance and application'. In that regard, they refer to Oshlack v Richmond River Council[3] and Rozen v Macedon Ranges Shire Council [No 2].[4]

4 The appellants also submit that they sought no personal financial reward and 'no possible economic windfall', but only a declaration of law in circumstances where 'the application of the law might result in loss to any person caught out by the misfortune of timing of the legislative amendment process, through no fault of their own'.

5 The appellants submit that they have borne the burden of a complex and important test case, that the legal questions were of public importance, and that a fundamental principle of planning law with far-reaching practical consequences has now been clarified for the benefit of all planning authorities and those undertaking development not requiring a planning permit.

6 In our opinion, the matters raised by the appellants do not provide a basis for departing from the ordinary rule as to costs. It is, of course, well established that public interest considerations are able to be brought into account in exercising the costs discretion.[5] However, the fact that the matter concerns public rights and duties marks only the beginning of the inquiry regarding the costs discretion. More is required to justify a departure from the general rule.[6] For example, it will usually be relevant to consider any private interests the party seeking to invoke the public interest was advancing under the unsuccessful litigation. In Oshlack, members of the High Court spoke of proceedings brought to advance a legitimate public interest 'rather than private rights', or involving 'no private gain'.[7]

7 It may also be relevant to consider whether other parties to the dispute were also advancing public interest considerations.[8] Sometimes, this may indicate that the case was a test case.[9] On other occasions, the public interest considerations might already have been weighed in a different forum and the legal issues raised in the subsequent proceeding challenging that outcome may not themselves be of 'public interest'.

8 In the present case, it may be accepted that the proceedings in this Court raised legal issues concerning the operation of the planning scheme and the legislation having significance beyond this case and for planning law generally.

9 However, we do not accept that the appellants had nothing to gain from the litigation. In Oshlack, it was held that it was open to take account of the motivation of the appellant in that case to ensure obedience to environmental law, having nothing else to gain from the litigation. Here, notwithstanding that the appellants assert that they did not stand to benefit other than by a declaration of law, the primary effect of success on their part would have been to spare them the cost and expense of seeking a planning permit, as well as the potential personal and financial detriment they would suffer if a permit were to be refused, or were to be granted only on conditions unacceptable to them. Viewed in that light, any public benefit in the present case is best regarded as tangential to its main purpose.

10 Nor was this a test case, in the sense that it sought to raise for the first time a significant legal issue not previously considered by the courts. Some of the legal issues raised by the appellants, while to some extent novel, were in truth arguments about the application of well-established judicial authorities to the facts of their own particular case.[10] This again points to the predominantly private character of the proceeding.

11 Further, in circumstances where one of the legal questions had already been determined by a judge in the Trial Division, the public interest in pursuing the matter further by way of appeal is at least questionable and certainly diminished. However the public interest might be thought to have been advanced by bringing the proceeding to resolve that issue in the Trial Division, the public interest in continuing the litigation by way of appeal, at least in this case, was significantly reduced.[11]

12 In the circumstances, there is no reason to depart from the usual result and it will be ordered that the appellants pay the respondent's costs of and incidental to the appeal, to be taxed on the standard basis in default of agreement.

[1] Anderson v Stonnington City Council [2020] VSCA 229.

[2] The respondent refers to Boz One Pty Ltd v McLellan [No 2] [2015] VSCA 145, [41] (Whelan, Santamaria and Kyrou JJA); MA and J Tripodi Pty Ltd v Swan Hill Chemicals Pty Ltd [2019] VSCA 46, [152] (Kyrou, Kaye and Emerton JJA); Trailer Trash Franchise Systems Pty Ltd v GM Fascia & Gutter Pty Ltd [2017] VSCA 293, [76] (Tate and Kyrou JJA); and Marriner v Australian Super Developments Pty Ltd [2016] VSCA 141, [228] (Tate ACJ, Kyrou and Ferguson JJA).

[3] [1998] HCA 11; (1998) 193 CLR 72, 88-9 [40]-[45] (Gaudron and Gummow JJ), 123-4 [136]-[137] (Kirby J) ('Oshlack').

[4] [2010] VSC 591, [4],[6], [10]-[12] (Osborn J) ('Rozen').

[5] See, eg, Cumming v Minister for Planning [No 2] [2020] VSCA 231, [9] (Tate, McLeish and Osborn JJA) ('Cumming').

[6] Oshlack [1998] HCA 11; (1998) 193 CLR 72, 91 [49] (Gaudron and Gummow JJ); Cumming [2020] VSCA 231, [9].

[7] Oshlack [1998] HCA 11; (1998) 193 CLR 72, 91 [49] (Gaudron and Gummow JJ), 124 [136] (Kirby J).

[8] Cumming [2020] VSCA 231, [9]-[10].

[9] Oshlack [1998] HCA 11; (1998) 193 CLR 72, 124 [137] (Kirby J).

[10] Cf Rozen [2010] VSC 591, [3] (Osborn J).

[11] Cf Cumming [2020] VSCA 231, [11] (Tate, McLeish and Osborn JJA).