3 As I have noted in the principal judgment, although the plaintiff did, before the Tribunal, raise a question of jurisdiction which the Tribunal determined adversely to the plaintiff, it did not do so on the basis upon which the plaintiff has succeeded today. Indeed, the maritime claim point was only advanced by the plaintiff in these proceedings after I had raised it with the parties on 21 September.
4 The plaintiff claims that, having succeeded on its claims to set aside the Tribunal's decision, it should obtain an order for costs against the first defendant. The plaintiff submits first that it had to bring the proceedings to set aside the decision of the Tribunal and that obtaining the orders was not simply a matter of agreement between the parties; secondly, that my conclusion was that the Tribunal had no jurisdiction and that means that the application by D V Kelly was always misconceived. Further, the plaintiff argues that it was for the Tribunal to determine whether or not it had jurisdiction and the fact that China Shipping did not put forward the Admiralty Act 1988 (Cth) as a reason for a lack of jurisdiction is irrelevant. The costs are to compensate the successful party and not to punish the defendant and that the plaintiff has been successful.
5 In Cutcliffe v Lithgow City Council [2006] NSWLEC 463; (2006) 147 LGERA 330 at [13], Biscoe J summarised the general principles:
"A successful litigant is usually entitled to an award of costs unless it has engaged in some sort of disentitling conduct relating or leading up to the litigation: Oshlack v Richmond River Council (1998) 193 CLR 72 at 97-98, 96 LGERA 173 at 192-194 per McHugh J. The object of a costs order is to compensate the party in whose favour it is made against the expense to which it has been put by reason of the legal proceedings, not to punish the party against whom it is made: Latoudis v Casey (1990) 170 CLR 534 at 542-543, 547."
6 The defendant resists, on a number of bases put forward by Mr Laws, this claim for costs. First, it has, via a submitting appearance, not sought to uphold the Tribunal's decision. Secondly, the Tribunal is a jurisdiction in which costs are not awarded and D V Kelly, in bringing a claim in the Tribunal, would have been entitled to understand that no costs award would be awarded against it in the event it was unsuccessful. The plaintiff now seeks a costs order that would, in effect, result in D V Kelly having to pay an amount in the order of $15,000, an estimate given by the plaintiff's solicitor on a party-and-party basis, almost twice the amount that was in issue in the Tribunal proceedings.
7 Mr Laws also puts forward the point that the plaintiff had reasons far wider than the outcome in this particular case for bringing the claim. There are, both sides agree, many other container cases or potentially many other container cases in the wings. It is not appropriate, he says, to visit the costs of a matter of wider commercial significance to the plaintiff on the first defendant. A further point made by Mr Laws is that it was the Tribunal that made the error in relation to jurisdiction, not D V Kelly, and there is no suggestion on the part of the plaintiff that D V Kelly has in any way been responsible for the failure of the Tribunal to discern that it did not have jurisdiction.
8 In my view, D V Kelly should not be required to pay any of the plaintiff's costs for the following reasons. Ms Nolan, in her submissions, noted that prima facie a defendant who files a submitting appearance except as to costs is prima facie only liable for costs up to the time of service of the submitting appearance and not thereafter: see Develtor Property Group Pty Limited v Newcastle City Council [2001] NSWLEC 47 at [38] . In that case, his Honour Bignold J made reference to that principle and referred, in support of it, to the case of Autistic Association of New South Wales v Dodson [1999] FCA 715. Ms Nolan submitted that it was proper to depart from the prima facie approach in this case by nature of the fact that the relief sought was declaratory, and was thereby of wider public importance such that it would affect the right of persons not parties to the litigation. In my view there is nothing in those facts which would lead to a party who had filed a submitting appearance being held liable for costs. Indeed, in my view, it only highlights that the plaintiff had reasons extraneous to the defendant to seek the relief that it sought.
9 Secondly, I think there is much in Mr Law's point that it would be unfair to hold the first defendant liable for the plaintiff's costs in circumstances where not only has it filed a submitting appearance but the proceedings that were commenced were in a Tribunal which had no power to impose costs and it would, in effect, be paying for the Tribunal's failure to recognise that it did not have jurisdiction.