[1] THE COURT: This Court delivered judgment in this matter on 5 June 2015 and allowed written submissions as to costs. The appellant was successful in relation to one of its two grounds of appeal. The costs associated with the second ground of appeal were not so distinct, conceptually or practically, as to warrant making a costs order which separately reflected the appellant's failure on the second ground of appeal. The two grounds are described at paragraphs [25]-[28] of this Court's judgment on appeal. They were related to each other, and involved consideration of the same evidence, arguments and case law. Having regard to the principles in Thiess v TCN Channel Nine Pty Ltd (No 5),[1] the appellant ought to have its costs of and incidental to the application for leave and the appeal in this Court.
[2] The respondent, Cidneo, argued that it ought to be given an indemnity certificate pursuant to s 15 of the Appeal Costs Fund Act 1973 (Qld). While it is true that the appellant succeeded in showing an error of law on the part of the Land Appeal Court, the submissions on behalf of Cidneo advanced no ground as a basis for the exercise of discretion in its favour. The discretion pursuant to s 15 is not limited, but the cases do offer some guidance as to its application.[2] In Vella v Larson[3] Macrossan J held that the provision, "was limited to relieving against a particular and limited type of misfortune in litigation", namely the relief of a party who incurred costs through no fault of their own, but because of error on the part of the Court below. There was not "any object of relieving against the ordinary risk of expense due to loss in litigation." He continued that, "To obtain a certificate, the obligation is on the applicant to show some ground calling for the exercise of discretion in his favour and he does not do this merely by showing that the appeal has succeeded on a question of law ...".
[3] Here Cidneo is a large commercial concern, which has engaged in protracted litigation, both in the Land, and Land Appeal, Courts, and also in the Planning and Environment Court in relation to this development. On its behalf, respected Queen's Counsel made submissions to the Land Appeal Court against the proposition which has been held to be correct on appeal. There is no suggestion that the point was not arguable by Cidneo both in the Land Appeal Court and in this Court. Further, the mere fact that an unsuccessful respondent in this Court advanced an argument which found favour below is not a reason to refuse an Indemnity Certificate.[4] Nonetheless, having regard to what was said in Vella v Larson, I do not think any reason to grant a certificate has been shown in this case. Cidneo advanced a submission in the Land Appeal Court which was consistent with its commercial and financial interests. That submission succeeded below, and Cidneo sought to maintain that position on appeal. I cannot see that its being ordered to pay the Department's costs is more than "ordinary risk of expense due to loss in litigation".
[4] The costs order made by the Land Appeal Court should be set aside and an order ought be made that each party bear its own costs of the appeal and cross-appeal in the Land Appeal Court. Both parties succeeded, or should have succeeded, on their respective contentions in the Land Appeal Court. Bearing in mind the mixed success each party had, this seems the fairest order. It was the order both parties asked for.
[5] The orders on the costs points are: