City of Darwin v The Heritage Council & Anor

• [5] There is no dispute between the parties that the general rule is that a successful party to litigation is entitled to its costs. However, the defendants argue that because the plaintiff was not successful on every ground of review which it advanced in this case, it should not be awarded costs of the unsuccessful grounds.
• [6] The defendants focus upon the use of the word 'event' in the well-known phrase 'costs follow the event', arguing that that reference is to the event of each separate 'issue' and that each of the substantive grounds raised were separate 'issues' relying upon separate and distinct evidence. Therefore, in the defendants' submission, a differential result on costs is appropriate, reflected either by awarding costs of the particular issues, or an order that the defendants pay a stipulated percentage of the plaintiff's costs.
• [7] It was not suggested that the plaintiff had unreasonably or improperly raised any of the issues upon which they were unsuccessful, or that there was any conduct on the part of the plaintiff in the litigation which would disentitle the plaintiff to an award of costs.

• [8] The power to order costs is discretionary and must be exercised judicially by reference to relevant considerations and facts connected with or leading up to the litigation.[2] Costs may be awarded in relation to the whole of a proceeding or a particular question in, or a particular part of, a proceeding.[3]
• [9] In Northern Territory v Sangare the High Court said that the "guiding principle" by reference to which the discretion is to be exercised is that the successful party is generally entitled to costs as an indemnity against the expense of litigation which they should not have been required to bear.[4]
• [10] In this case, the dominant issue upon which the plaintiff succeeded in grounds one and five, was the denial of procedural fairness in the process leading to the decision as to the heritage significance of the nominated area and therefore the provisional declaration. Once ground one was decided in favour of the plaintiff, ground five followed as a matter of course. Although ground two failed on the basis of materiality, it was, as stated in the judgment, an issue which was partly subsumed by the overall failure of procedural fairness which was the subject of ground one.[5] There was also some "overlap" between grounds one and seven, although of a much more marginal kind. Ground four was an argument about the legal interpretation of the word "place" in s 5 of the Heritage Act 2011 (NT) (the Act) and ground three involved an assertion of failure to assess the area, reliant upon almost the same evidence.
• [11] I do not accept the defendants' argument that the various grounds of judicial review relied upon separate and distinct evidence. Although not all of the evidence was relevant to all grounds, a substantial part was relevant to multiple grounds, at least as context. This was also a case where there was very little dispute on the evidence. No witnesses were cross-examined.
• [12] The defendants argue that the issues were separate because if the plaintiff had succeeded on grounds two and four, the entire process would have been put to an end. The grounds that were upheld resulted in setting aside the first defendant's decision and the second defendant's declaration but did not prevent the assessment of the nomination proceeding to assessment under the Act provided that natural justice was afforded to the plaintiff.
• [13] That submission overlooks that the plaintiff in its originating motion sought orders in substantially the same terms as those ultimately made. The grounds upon which the plaintiff was unsuccessful did not add to the cost of proceedings in any significant or readily discernible way, and the length of the proceeding was not greatly increased by argument on the unsuccessful issues.
• [14] In my view this is not a case where it is appropriate to make a differential costs order based upon resolution of separate issues. The successful party has not unfairly or improperly increased costs, for example by arguing points which have no merit. Most of the case was concerned with ground one, upon which the plaintiff succeeded. The grounds upon which the defendants succeeded were not the dominant or separable issues and there would be no injustice in the application of the general rule that a successful party should be awarded its costs in this case.[6]

• [15] The defendants are to pay the plaintiff's costs of the proceeding on a standard basis, to be taxed in default of agreement.

[1] City of Darwin v Heritage Council & Anor [2024] NTSC 95.

[2] Northern Territory v Sangare [2019] HCA 25; (2019) 372 ALR 117, [24].

[3] Supreme Court Rules 1987 (NT) r 63.03, 63.04. As to the source of the power of the Court to award costs see the High Court's decision in Northern Territory v Sangare [2019] HCA 25; (2019) 372 ALR 117, [12]-[15].

[4] [2019] HCA 25; (2019) 372 ALR 117, [25].

[5] City of Darwin v The Heritage Council & Anor [2024] NTSC 95, [92].

[6] See discussion as to principles in Value Inn Pty Ltd v Proprietors of Unit Plan 2004/048 [2020] NTCA 8, [31].