Friends of King Edward Park Inc v Newcastle City Council

Friends of King Edward Park Inc v Newcastle City Council - [2016] NSWLEC 74 - NSWLEC 2015 case summary — Zoe

[2]

Some relevant and more detailed history of the litigation

Fairly early in 2012, not long after the applicant's case was commenced, the Crown Solicitor, representing the Crown respondents, began urging the applicant to have regard to s 34A of the CL Act (joint tender bundle, Vol 2, tab 18, par 13, and tab 39), and not to pursue its claim for injunctive relief against them (see Marshall, Vol 2, tab 7). Section 34A would be engaged only once DC has been granted for the subject site.
In April-May 2012 (judgment dated 16 May 2012: Friends of King Edward Park Inc v Newcastle City Council [2012] NSWLEC 113), Biscoe J dealt with two Notices of Motion ("NOM"), one brought by Council seeking provision by the applicant of $70,000 security for Council's costs, and one by the applicant seeking directions in favour of its filing and serving reports by a geotechnical expert, Dr Philip Pells, and an expert surveyor.
His Honour was satisfied that the proceedings were brought in the public interest ([63]), and had the necessary "something more" ([64]), which the authorities require, in order to immunize the applicant from an order for security. He declined to order it, but made directions regarding Dr Pells, and also ordered that the parties' costs on both NsOM "be [their] costs in the cause".
On 26 June 2012, an Amended Summons was filed.
On 10 July 2012 (not 10 June, as suggested by the applicant), Council refused a modification application, made on 23 May 2012, concerned primarily with the question of a contentious pathway. On 17 July 2012, Council issued its Notice of Determination of that application.
All three non-submitting respondents having filed POD by the end of August 2012, the parties considered mediation, suggested on 3 September 2012 by the Crown respondents. A mediation was ordered on 1 November 2012, by consent, and one was held on 18 February 2013, and terminated on 8 April 2013.
That mediation resulted in the resolution of some disputes among the parties, and in the narrowing of others.
It is fair to observe, as Council does in its costs submissions (par 40(o)), that "the proceedings had [then] essentially been in abeyance" for about 12 months from May 2012.
An agreement was reached, between the applicant and the Crown respondents, which resulted in consent orders, notations, and directions being made by Craig J on 17 May 2013 (see joint tender bundle Vol 1, tab 8, fols 4 to 7, and Vol 2, tab 37, fol 53), and in many (further) amendments being made to the parties' pleadings, in and after May 2013 (Vol 2, tabs 29 - 35), including a Further Amended Summons and POC. His Honour also, by consent, granted (a) leave to the applicant to discontinue its claims for injunctions against the Crown respondents, and (b) leave to those respondents to file submitting appearances.
The implementation of that significant agreement included notation by His Honour, in Court (T17.5.13 p4, LL14 - 15, at Vol 1, tab 8, fol 7), and on the Court file, as at 17 May 2013, that "as among the applicant, the second and third respondents, each must bear their (sic) own costs of the proceedings to date".
The Amended Consent Order of 18 October 2013, and the "amended agreement" attached to it (joint tender bundle Vol 2, tab 37, fols 51 and 53), again noted that the relevant parties had agreed, and that the Court, by consent, ordered, that "the Applicant and 2nd and 3rd Respondents shall pay their costs of the proceedings as between each other (sic)".
On 25 June 2013, in consideration of the conflicting 2011 legal opinions regarding the validity of the POM, as the underpinning source of power for any DC granted for the proposal, Council met, and determined to limit its "future role and potential exposure to adverse costs orders" in the case (Marshall par 35, and Statement of Position, joint tender bundle Vol 2, tab 35, fol 47, pars 11 - 12).
The applicant's chronology refers to some settlement discussions in September 2013, but the Court gave further directions on 20 September 2013.
Council filed a "Statement of Position" on 17 October 2013 (joint tender bundle Vol 2, tab 35), and the Crown respondents did likewise next day (tab 36). Council essentially left it to the applicant to prove its entitlement to relief. Council's submissions note (par 4(t)) that the applicant thereafter filed seven further affidavits.
Council took no role in, and made no submissions on, the applicant's primary grounds of challenge (Marshall par 48, and see [199] in [32] below).
On 23 October 2013, the Minister finally filed her promised submitting appearance, save as to costs. However, the Minister has now, post-judgment, become a specific target of a costs application by the applicant (see 47 below).

[3]

The hearing of the substantive case

The eventual hearing, 24 - 26 March 2014, proceeded on the basis that the applicant still contended, after the mediated "settlement" of some issues, that both the DC and the POM were invalid. If the POM were found to be invalid, Council had no power to grant the DC.
The active respondents, namely the Council and the Trust, assured the Court that they would abide by any determination made by the Court, and injunctive relief was then pressed by the applicant against only the proponent of the project.
As its claim was finally formulated, the applicant sought: 1. a declaration that the development consent "for a function centre, kiosk, associated car parking and landscaping" was invalid, and of no effect; 2. a declaration that development of King Edward Headland Reserve for the purposes of "function centre" was not authorised by the POM for the Reserve, as adopted by the Minister for Lands; 3. a declaration that the POM was invalid, and of no effect; and 4. an order restraining the use of the subject land for any purpose other than public recreation; and 5. an order for costs.
The Council and the Trust played active parts in the hearing, but the Council clearly delineated its role. The Trust alone defended the POM, and argued that, if it were found to be invalid, those parts so found could be severed. The Council made no submissions on those issues, and did not rely on any lay or expert affidavit evidence, but it defended the DC.
No witnesses were called at the hearing, and all the Court's time was taken up by counsel's addresses: Mr Robertson for all of the first day, and until 3:15pm on the second; Mr Shearer for the balance of the second day, and until 11:30am on the third; Mr Birch from 12 noon till 4:00pm on the third day; and then Mr Robertson in reply until approximately 5:00pm that day (see Marshall, pars 45 to 47).
It has been calculated that, in terms of time and transcript, the applicant took up 71%, the Council 17%, and the Crown Respondents 11% of the hearing (outline provided to the Court by Mr Birch at Tp44, LL42 - 50).
There were before the Court "primary" and "secondary" grounds of challenge - the primary grounds attacked the POM, and the secondary attacked the DC (see judgment No 2, at [22] - [30], and [199] - [201]).
For completeness, I repeat now those grounds in some detail (judgment No 2, at [199] - [201], references omitted): 199 The primary grounds were ...: (a) the DA was for prohibited development because although the POM purports to allow additional uses, namely, "conference centres and commercial facilities that provide for public recreation", the proposed development did not satisfy that description ...; (b) even if the proposed development falls within the additional uses specified in the POM, the POM does not lawfully provide for those additional uses, because they do not fall within the definition of an "additional purpose" within the meaning of s. 112A of the [Crown Lands Act] ...; (c) in any event, the POM did not validly authorise the use of the Reserve for additional purposes because the Minister did not, before determining to adopt the [POM], have regard to the mandatory matters referred to in s. 114(1C) ...; and (d) carparking and associated works are prohibited development in King Edward Park because of the absence of a [POM] under the [Local Government or Crown Lands Acts], or if there is, it does not allow development for a function centre or the works within the Park ... . 200 Even if I find that the POM was valid, and that it authorised development for the purpose of "function centres and commercial facilities that provide for public recreation", the applicant's secondary grounds allege that the Council, for numerous reasons, did not validly exercise its power to grant the DC. 201 The secondary grounds were ...: (a) the lack of owner's consent for the application for the works in King Edward Park ...; (b) no integrated development approval was sought or obtained from the [Mines Subsidence Board] ...; (c) the amended development proposal incorporating a pathway partly in King Edward Park was not advertised or notified in accordance with the relevant DCP ...; (d) the Council failed to have regard to cl.27(1) of the relevant LEP concerning the effect on the heritage significance of the relevant heritage items and conservation area ...; (e) the Council breached cl.31 of the LEP by failing to obtain a heritage impact statement addressing the heritage impact of the pathway, and failed to notify local Aboriginal communities and to take into consideration any comments received in response to the notification ...; (f) the Council failed to consider the heritage provisions of the LEP, the likely impacts of the development, the suitability of the site for the development and the public interest, and deferred consideration of impacts of the pathway to the certification stage ...; (g) The Council was under a duty to make further enquiries in relation to various matters, but failed to do so ...; and (h) the consent fails for manifest unreasonableness ... .
Questions of discretion (judgment No 2, at [31]), and/or of the application of s 25B of the Land and Environment Court Act 1979 (T25.3.14 p120, LL43 - 49), were also raised, for the Court's consideration, in the event that the challenge to Council's DC succeeded.

[5]

Competing Costs Claims

On 1 June 2015, the Council and the Trust filed competing applications for costs, and, on 19 June 2015, I referred them to mediation, which was set for 6 July 2015.
The applicant filed in Court, prior to the mediation, an estimate of its costs, to 4 July 2015, at some $344,000.
The mediation held on 6 July 2015 was unsuccessful in resolving the costs disputes, and they came back before various judges of the Court on 7 August (Pain J), 21 August (Biscoe J), 11 September (Biscoe J), and 20 October 2015 (Craig J in chambers), before coming before me for hearing on 16 November 2015.
On 21 August 2015, some directions were made by Biscoe J. The word "consent" is struck out on the Short Minutes, and the costs of that day were specifically reserved.
On 27 August 2015, the applicant filed a NOM seeking leave to claim, outside the 21 day period specified in my Order (4), a "different" costs order. The applicant's solicitor, Jacquie Svenson, swore an affidavit in support. On 11 September 2015, Biscoe J, by consent, granted such leave, and stood over to the costs hearing: (a) the applicant's application for an order that the three active respondents pay its costs of that NOM seeking that leave, and (b) prayer 3 of the applicant's NOM, namely: In the event that the Court decides that Order 4 made by Sheahan J on 11 May 2015 should be varied so as to reduce the costs liability of either or both the first and second respondents, that the third respondent pay so much of the applicant's costs of the proceedings as are not payable by the first and second respondents.
On 20 October 2015, Craig J made some adjustments to the timetable for evidence and submissions.
In the result, there are now before the Court effectively three NsOM, which may be summarized as follows: 1. The Council (NOM 1 June 2015) seeks that my Order (4) ([39] above) be varied (a) so as to remove reference to the 1st respondent (such that the 1st respondent is not liable to pay the applicant's costs of the proceedings), and (b) to otherwise be made subject to such costs orders as have previously been made in the proceedings. Council also seeks (c) an order that the applicant pay its costs of and incidental to Council's motion. 2. The Trust (NOM 1 June 2015) seeks, firstly, an order varying my Order (4), such that the parties are each to bear their own costs of the proceedings, and "in the alternative to order 1, secondly, such other costs order as the Court thinks fit", and, thirdly, an order that the applicant pay the Trust's costs of its costs motion. 3. The applicant (NOM 27 August 2015) seeks, primarily, that my Order (4) not be varied, but, if it is varied so as to reduce the costs liability of either or both the 1st and 2nd respondents, that the 3rd respondent [the Minister] pay so much of the applicant's costs of the proceedings as are not payable by the 1st and 2nd respondents. The applicant also seeks an order that the 1st, 2nd and 3rd respondents pay the applicant's costs of and incidental to its motion of 27 August 2015.
In the costs hearing on 16 November 2015: 1. The proponent neither sought costs, nor had costs sought from it, and played no part in the costs hearing; 2. Mr Lazarus and Ms Walker of counsel appeared for the applicant, and relied upon two affidavits by its solicitor, Jacquie Svenson, the one dated 26 August 2015 (see [45] above), and another dated 17 September 2015; 3. Mr Shearer of counsel appeared for the Council, and relied upon two affidavits by its in-house lawyer, Donald James Marshall, dated respectively 1 June 2015 and 19 October 2015, to the latter of which were attached two large folders of material; 4. Mr Birch SC appeared, with Ms S Ross of counsel, for the Trust, and relied upon two affidavits by its solicitor, Ewa Pardey, dated respectively 1 June 2015 and 17 September 2015; 5. Mr Birch SC and Ms Ross appeared also for the Minister, but led no evidence on his/her behalf; 6. All these affidavits and attached materials were read, without objection; 7. The participating parties also agreed upon a two-volume "joint hearing tender bundle", which was produced by the Crown Solicitor and has been mentioned above; and 8. The Court had before it written submissions from the applicant and the 1st and 2nd respondents (including, but not only, joint tender bundle, tabs 10 - 13, and 41), and also had the benefit of comprehensive oral submissions.

[6]

The Applicant in chief

The applicant submits that, as it obtained the relief it sought, it should recover all of its costs - primarily from the 1st and 2nd respondents, but, if necessary, any balance from the 3rd respondent - and the contrary NsOM should be rejected.
Of the four primary grounds of invalidity the applicant advanced, it succeeded on three, and should not be liable to any respondents for the failed ground, because that ground was not "clearly dominant, severable, or discrete" (see Bostik Australia Pty Ltd v Liddiard (No 2) ("Bostik") [2009] NSWCA 304 at [38]), and the evidence upon which the applicant relied was necessary to all four primary limbs of its challenge.
Errors by Council and the Minister were "equally fatal" to the DC, and the apportionment among respondents of the burden of defending the DC should not sound in any reduction in the costs the applicant should recover. Had the applicant's primary grounds not succeeded, the secondary grounds would have been adjudicated. They did not "fail", and were not abandoned, so the applicant should not be penalised as to the costs of preparing its case on them.
All the applicant's grounds were arguable, and no unnecessary evidence was filed. It needed to be prepared for a contest on all its grounds of challenge.
Council did not really submit; it simply declined, after October 2013, to continue to defend certain aspects of the applicant's challenge. The cases suggest that Council should have submitted.
Perhaps it could be said to have done so, eventually, but it actively contested the whole of the applicant's case, at least until October 2013, and arguably exceeded its self-imposed limitations after that.
As between the 2nd and 3rd respondents, one chose to let the other defend the challenge, on behalf of both of them, but it "let go" slowly, and not until after it filed a statement of position.
The applicant should not be penalized for backing off the injunctions it sought against respondents 1 to 3. Its crucial aim was to secure a declaration of invalidity, and some order precluding the development as approved, and it succeeded.
It incurred most of its costs before October 2013, and was kept busy by Council between May 2013 and at least August 2013. Regardless of the POM's problems, Council "got it wrong", and relied on advice from the Crown, which turned out to be wrong.
The Minister made a key error on the POM, and proffered poor advice, so perhaps it should pay some of the applicant's costs, at least until 14 October 2013. The Trust chose the issues to fight, on behalf of both the Trust and the Minister, and should get no discount for defeating one of the four primary grounds.
Even though the applicant did not, in the end, pursue injunctions against respondents 1 to 3, all the issues identified by Biscoe J, in his judgment of 16 May 2012, remained in play at the time of the trial.
In the "event", the applicant secured the relief it sought - the Court invalidated (1) the DC, because it was for a prohibited development, and (2) the POM, upon which the DC relied, and stopped the project. Each respondent was a necessary party, and those who remained active were unsuccessful, save as to one ground argued for invalidity.
There is no basis for departing from the usual costs rule, and there has been no disentitling conduct on the applicant's part. The first part of Order (4) should stand.

[7]

The Council

The Council stresses that it is not automatic that "costs follow the event".
That general rule is capable of operating unfairly, and the Court must exercise its power fairly, and "do substantial justice" among the parties.
Council relied largely on cases outside this Court's work, and argued that an order against it in the present case would do a positive injustice - Council took no role in making the POM, it relied on Crown Law advice, it was entitled to assume the POM was valid and to rely on that advice, and it took no stand on the primary grounds which underpinned the Court's decision.
An order against Council would constitute a disincentive for a respondent council to limit its role in proceedings.
There was no "event" on the issues Council addressed. Only the NOM heard by Biscoe J caused the applicant to incur any costs, and Council accepts that it is liable for those costs.
However, in the final hearing, the applicant put on excessive evidence, and misconducted itself regarding the pathway (see Ritchie's Uniform Civil Procedure (NSW) practice ("Ritchie"), section 42.1.20, on "misconduct" regarding either the "transaction" the subject of the proceedings or the conduct of the proceedings themselves).
In its written submissions, the Council said, inter alia: 11. Of course, the Council did not advance a positive case in respect of the determinative primary grounds (or any grounds), but only certain narrow questions of relief which only arose in the event any of the secondary grounds were upheld. That is, in the event that the secondary grounds were upheld, whether the pathway condition was severable or whether relief should be refused on a discretionary basis having regard to the conduct of the Applicant. It was made clear that these issues, being the only issues on which the Council presented a positive case, did not arise in the event the primary grounds were upheld. That narrow role was recorded by the Court ... . In the event, the Court indicated that given its findings in respect of the primary grounds, it was unnecessary for it to consider and determine the secondary grounds and furthermore specifically observed that as such, it was not necessary to address the Council's arguments concerning the severability of the pathway condition and the discretionary bases on which relief might be refused ... . ... 27. Lastly, the Applicant claims to have brought the proceedings in the public interest. Its contention in this regard was accepted in relation to relieving it of any liability to pay security for costs: Friends of King Edward Park Inc v Newcastle City Council (2012) 194 LGERA 226. In the event the Applicant was unsuccessful in the proceedings, the Respondents would not have been able to receive their costs based on the public interest characterisation of proceedings. As a matter of principle, the Applicant should be in no different position to a Respondent. There is no sound basis as a matter of principle to relieve an Applicant from any potential costs burden in the event they are unsuccessful, but hold that Respondents are liable for costs in the event they are successful. Otherwise, all costs risk is simply shifted to one side of the record and one party is treated by the Court in a fundamentally different way to another party. Such is to treat the two sides of the record in a fundamentally unequal fashion. If the proceedings are brought altruistically with no financial motive simply to have the Court express a view on a legal issue of public significance such that usual costs rules should be relaxed, there is no principled reason why the same should not apply to both sides of the record (especially, given the importance that a contradictor could have in aiding the resolution of the issue). The Applicant has satisfied its public interest objective. E CONCLUSION 28. The Council should not be liable for the Applicant's costs in respect of the proceedings, and any costs order should be framed so as not to provide for any such liability. 29. The Council seeks its costs of the present application.

[8]

The Crown Respondents

The Trust submits that the applicant failed on significant issues regarding the Crown Lands Act 1989 ("CL Act"), and that the Trust's interest and role in the matter took up less than 50% of the total hearing time.
The Trust and the Minister claimed from the start of the case that the applicant's proceedings were premature, as the Minister had not made a s 34A determination. Eventually, part of the case was resolved, but the applicant pursued injunctive relief until the last minute. It was necessary for the Crown to defend its administration of the CL Act, and to avoid the cost of making a new POM. The Crown succeeded on the CL Act, its "most important legal issue".
Council could not "sensibly excise itself from the contest over the POM, but the DC issues" were of no relevance to the Trust, which was not responsible beyond the POM.
The applicant should bear the costs of the May 2012 NsOM dealt with by Biscoe J.
The Minister was entitled to hold off submitting until the parties had formalised their positions.
Another POM and a fresh project remain possible - so the applicant achieved only a "hollow" victory.
In its written submissions on its own NOM, the Trust said, inter alia: 88. On the eve of the hearing the Trust was faced with a renewed claim in the written submissions for broad injunctive relief (not pressed at the hearing) and arguments based on construction of the Crown Lands Act that if accepted by the Court would have severely restricted the conduct of the Trust in regard to future use of the land. The Trust successfully resisted those arguments. 89. While the Trust undertook the burden of upholding the validity of the Plan of Management and was ultimately unsuccessful in that course, from a practical point of view, and looking at what was at stake in the litigation, the Trust successfully resisted attempts to limit the scope of its future conduct in regard to the land. In that regard it had substantial success. 90. On the basis of the foregoing, the Trust submits that the appropriate order is that each party bear its own costs. 91. The Trust does not primarily submit that apportionment is appropriate in this case. However in the event that the Court concluded to the contrary that it was an appropriate matter for apportionment, the Trust submits that it should be ordered to pay only a modest portion of the Applicant's costs (no greater than 20%). 92. The Trust seeks its costs of this application.
In its written submissions in answer to the applicant, the Trust said, inter alia: 49. Had that submission been adopted, and endorsed by the Court, that would have involved a severe restriction on the ability of the Minister to include additional purposes in any future plans of management. This had potential wide ranging repercussions for existing and future plans of management for land reserved for public recreation. 50. The principle in Cutcliffe [and Anor v Lithgow City Council & Ors ("Cutcliffe") [2006] NSWLEC 463; 147 LGERA 330] does not extend to a situation where there are issues of statutory construction which, if decided in a particular way, would fetter the statutory powers of a consent authority or a Minister. ... 53. As submitted in its submissions in chief on its costs motion, the appropriate order is that each active party (the Applicant, First and Second Respondents) bear its own costs. 54. For the reasons set out above, the Minister ought not to be liable for any of the Applicant's costs. 55. The Trust seeks its costs of this application.

[9]

The Applicant in Reply

In its written submissions in reply to the costs motions from the 1st and 2nd respondents, the applicant said, inter alia: 22 Ground (b), the only issue in the whole case on which the applicant failed, was related to ground (c) in that both were concerned with the effect of the reservation of land for public recreation under the CL Act. Whereas ground (c) required the Court to consider whether a function centre was, by definition, a use for the purpose of public recreation (and therefore whether the Minister was required to consider s 114(1C) grounds before granting consent), ground (b) required the Court to consider whether a function centre was so antithetical to the purpose of public recreation that it was not within the power of the Minister to adopt this as an additional purpose under s 114 of the CL Act. These two grounds involved consideration of the same statutory substratum of Part 5, division 6 of the CL Act, and ground (b) did not require any new evidence. ... 43 The first respondent's submission that it restricted itself to issues of relief and severance should not be accepted uncritically. It should be recalled that the first respondent put the applicant to proof on the issue of whether there was evidence of consideration of matters on the Council's files, even though that related only to the question of breach, and not to either severance or relief. ... ... 48 If, as Biscoe J observed in Cutcliffe, the applicant should not be deprived of its costs due to the absence of any active opposition on the part of the respondents, then there is much less reason for it to be deprived of its costs because the participation of the respondents was selective. It is undesirable from an access to justice point of view that an applicant who expends its own resources to enforce compliance with the law should be deprived of a costs order by respondents picking and choosing which issues they wish to defend, perhaps based on a perception of the likely chances of success of each ground of appeal. 49 The first respondent cites Probiotiec (sic) [Ltd] v University of Melbourne [("Probiotec")] (2008) 166 FCR 30 at [68] in support of the proposition that a party which does not take an active role in the proceedings may, be for some purposes in the same position as a non-party. However, that case may be distinguished because it involved commercial parties, not a public authority whose decision formed the subject-matter of judicial review proceedings. Probiotec was a patent infringement case in which the appellants were joined, but were excused from taking any further part in the proceedings, having consented to pay damages or an account of profits in the event that it was determined that they had infringed either of the relevant patents. By contrast with the present position, the appellants' conduct in that case did not cause the litigation to arise. In this case, it is only because of the grant of consent by the first respondent that these proceedings have come about.

[10]

The Principles

The Court has a broad discretion to determine the costs burden. Section 98(1) of the Civil Procedure Act 2005 provides: Courts powers as to costs (1) Subject to rules of court and to this or any other Act: (a) costs are in the discretion of the court, and (b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and (c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis.
These are Class 4 proceedings, to which Rule 42.1 of the Uniform Civil Procedure Rules 2005 applies: General rule that costs follow the event Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs.
Upon a review of relevant authority, the Court of Appeal said, in Sze Tu v Lowe (No 2) ("Sze Tu") [2015] NSWCA 91, at [39] per Gleeson JA, that "the event of the claim ... may be understood as ... the practical result" of it.
Costs are compensatory and not punitive: Latoudis v Casey [1990] HCA 59; 170 CLR 534, at 543 per Mason CJ. The costs discretion (or power) must be exercised judicially, "that is to say not arbitrarily, capriciously, or so as to frustrate the legislative intent": Oshlack v Richmond River Council ("Oshlack") [1998] HCA 11; 193 CLR 72; 96 LGERA 173, at [22].
In Foots v Southern Cross Mine Management Pty Ltd ("Foots") [2007] HCA 56; 234 CLR 52, the plurality of a somewhat reconstituted High Court reaffirmed the principles in Oshlack, especially those expressed in paragraphs [40], [41], and [44] of it, which said (footnotes omitted): 40 There is no absolute rule with respect to the exercise of the power ... that, in the absence of disentitling conduct, a successful party is to be compensated by the unsuccessful party. Nor is there any rule that there is no jurisdiction to order a successful party to bear the costs of the unsuccessful party ... . 41 If regard be had to the myriad circumstances presenting themselves in the institution and conduct of litigation, and to the varied nature of litigation, particularly in the equity jurisdiction, it will be seen that there is nothing remarkable in the above propositions. Several examples will suffice. ... ... 44 It may be true in a general sense that costs orders are not made to punish an unsuccessful party. However, in the particular circumstance of a case involving some relevant delinquency on the part of the unsuccessful party, an order is made not for party and party costs but for costs on a "solicitor and client" basis or on an indemnity basis. The result is more fully or adequately to compensate the successful party to the disadvantage of what otherwise would have been the position of the unsuccessful party in the absence of such delinquency on its part.
The plurality in Foots emphasised those principles embodying flexibility in discretion, and the non-punitive function of costs, by reference to an old English text from which it quoted (in [34]): In exercising this discretion, however, the Court does not consider the costs as a penalty or punishment; but merely as a necessary consequence of a party having created a litigation in which he has failed; and the Court is, generally, governed by certain fixed principles which it has adopted upon the subject of costs, and does not, as is frequently supposed, act upon the mere caprice of the Judge before whom the cause happens to be tried.
One option open to a court is to "apportion costs" on some basis or other.
In Cretazzo v Lombardi (1975) 13 SASR 4, at 16, Jacobs J warned that "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". His Honour added: 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.
In Hughes v Western Australia Cricket Association (Inc) [1986] FCA 382; ATPR 40-748, Toohey J awarded the applicant 75% of his costs on the basis that, although he had "failed in the majority of" the causes of action he pleaded, he "succeeded in his primary aim" (see Cutcliffe at [24]).
His Honour accepted that apportionment was not limited to the technical pleadings, but applied to "any disputed question of fact or of law", and noted that "there is no difficulty in stating the principles: their application to the facts of a particular case is not always easy".
Sze Tu came fairly recently in a line of Court of Appeal authority on costs issues. It built on, and cited with approval, decisions such as Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373, and Bostik (see [50] above). In Bostik the Court of Appeal said (at [38] - most citations omitted): • Where there are multiple issues in a case the Court generally does not attempt to differentiate between the issues on which a party was successful and those on which it failed. Unless a particular issue or group of issues is clearly dominant or separable it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed: Waters v P C Henderson (Aust) Pty Ltd (Court of Appeal, 6 July 1996, unreported). • In relation to trials it has been said that it may be appropriate to deprive a successful party of costs or a portion of the costs if the matters upon which that party was unsuccessful took up a significant part of the trial, either by way of evidence or argument: ... • If the appellant loses on a separate issue argued on the appeal which has increased the time taken in hearing the appeal, then a special order for costs may be appropriate which deprives the appellant of the costs of that issue: ... • Whether an order contrary to the general rule that costs follow the event should be made depends on the circumstances of the case viewed against the wide discretionary powers of the court, which powers should be liberally construed: ... • A separable issue can relate to "any disputed question of fact or law" before a court on which a party fails, notwithstanding that they are otherwise successful in terms of the ultimate outcome of the matter: James v Surf Road Nominees Pty Ltd (No 2) [("James")] [2005] NSWCA 296 at [34]. • Where there is a mixed outcome in proceedings, the question of apportionment is very much a matter of discretion and mathematical precision is illusory. The exercise of the discretion depends upon matters of impression and evaluation: James ...
James noted, at [34], that "a distinction is commonly drawn between cases which involve clearly discrete issues for determination, and those in which all issues are inseparable, or at least sufficiently linked, with respect to the overall disposition of a particular matter".
In a later Court of Appeal case, Bailey v Director-General, Department of Natural Resources NSW [2015] NSWCA 318, Basten JA said (at [118]): The appellants repeated their complaint at trial that the indemnity costs should not extend to the costs of assessing damages. If it mattered, they asserted that some 35% of their costs related to damages. It was presumably to be inferred that a similar percentage of costs of the defendants related to damages. Ultimately, having dismissed the plaintiffs' claims at the liability stage, it was not necessary for the trial judge to address the question of damages. However, neither that fact, nor the fact that certain aspects of the assessment were agreed (thus reducing the potential costs), affect the entitlement to recover costs. Nor is there anything in the rules to suggest that an order for indemnity costs under Pt 42, r 15A should properly be refused in relation to the costs of undetermined issues. Again, such an approach would be disruptive of the underlying purpose of the rule. As explained by Burchett J in Australian Conservation Foundation v Forestry Commission [(1988) 76 LGRA 381, at [62]] a defendant is entitled to raise its earthworks at more than one point and if successful at the first point, is not to be deprived of its costs with respect to other defences which turned out not to be required. (No doubt the defences must each be reasonable in their own terms, but there was no suggestion to the contrary in this case.)
As I observed in Bardsley-Smith v Penrith City Council (No 2) [2015] NSWLEC 94, at [120]: ... the decision on whether or not costs should be apportioned is not a mathematical exercise of ticking off the paragraphs in the points of claim to see who won which issue. It is an exercise of discretion based on the whole of the circumstances which the court has before it. ...
The basic principles I have outlined in this section were recently re-affirmed by the Court of Appeal in Botany Bay City Council v Minister for Local Government (No 2) [2016] NSWCA 127.

[12]

Submitting parties

Ritchie deals at some length with submitting appearances.
Ritchie notes (par 6.11.5) that a submitting party will not ordinarily be liable for costs incurred after the filing of its submitting appearance: Develtor Property Group Pty Limited v Newcastle City Council ("Develtor") [2001] NSWLEC 47. The entry continues: However, where a defendant files a submitting appearance just before a hearing and has otherwise been active in preparation of the matter, such a defendant is liable to be treated as an active defendant for costs purposes: Douglas v James (No 2) [("Douglas")] [2015] NSWSC 969; BC201506699 at [52] per McDougall J ...
The learned author goes on to note that a submitting appearance expressed to be "save as to costs" does not automatically preclude a costs order being made against the submitting party. In applying the relevant statutory powers as to costs the Court has a wide power, and the order made must reflect "all the circumstances of the case": see Douglas, at [47] - [48]. Ritchie notes (section 6.11.10): Often an application of that principle will mean that a defendant who submits, whether formally or informally, and takes no part in the determination of issues that are actively contested by other parties, will not be ordered to pay any costs subsequently incurred in the conduct of the proceedings.
Ritchie comments: ... the court's general costs discretion under UCPR r 42.1 may be exercised, even against a party that has formally entered a submitting appearance, depending on the true extent of that party's actual responsibility for the costs incurred in the proceedings. [see Douglas, at [52]].
In a subsequent paragraph (6.11.15), Ritchie deals specifically with "appeals from decisions of statutory decision makers ... (frequently Local Government Councils)", noting a "general practice ... not to make any order" against such a decision maker in relation to costs incurred after the filing of a submitting appearance, and citing Develtor. The learned author then notes: This position is subject to some debate as to whether a submitting party should remain liable for costs where a plaintiff seeks declaratory relief and the proceedings cannot be determined merely on the basis of absence of contest from the submitting party: see Cutcliffe ... at [31]. [Reference is then made to "exceptions", and to pars [37] and [50] of Cutcliffe - see [107] and [109] below].

[14]

Cutcliffe

Biscoe J had earlier ([2006] NSWLEC 317) declared "void and of no effect" a DC granted by the 1st respondent Council to the 2nd respondent developers, and he granted a restraining order against the 2nd respondents, all by consent of the applicants after an uncontested hearing for which the Council had filed a submitting appearance, save as to costs, "at a late stage of the proceedings".
His Honour recorded in the costs judgment (at [2]): The applicants seek their costs of the proceedings from the council but seek no costs order against the developers. If a costs order is made in favour of the applicants against the council, then the council seeks an order that the developers pay the council 50 percent of such costs. The developers seek an order that the council pay the developers' costs of the proceedings.
His Honour summarized (at [10] - [11]) the submissions made by the applicants, and by the Council, and then the basic principles governing the exercise of the costs discretion, quoting many authorities.
His Honour went on to say: 22 As the council and the developer ordinarily would be liable to pay the applicants' costs in a case of this type, I think it usually would be unjust to impose the entire costs burden on the council merely because the applicant elected to seek costs only against the council. The Court should endeavour to mould costs orders accordingly. That could be achieved by ordering the developer to pay an appropriate portion of any costs that the council is liable to pay the applicants, unless the council has engaged in disentitling conduct. 23 In my opinion, in the present case there should be a costs order in favour of the applicants against the council, subject to a discount for costs relating solely to the challenge to the validity of the first development consent which the applicants abandoned at the hearing. The main factors leading to this conclusion are that the applicants were successful in relation to the second development consent because of the council's errors and the council actively defended the proceedings until a late stage when it submitted except as to costs. The matters submitted by the council referred to in paragraph 11 above are of insufficient weight, in my view, to displace this conclusion. ... 27 The council's submitting appearance was, I think, consistent with views expressed in the joint judgment of Gaudron and Gummow JJ in [Oshlack] at 77-78 and in the judgment of Cowdroy J in this Court in Kindimindi Investments Pty Ltd v Lane Cove Council [& Anor ("Kindimindi")] (2006) 143 LGERA 268 at 275 [35]. In Oshlack the applicant brought proceedings against a council and a developer in respect of a consent granted by the Council to a development application by the developer. One of the applicant's allegations was that the council had failed to discharge its statutory obligation to consider certain matters. Gaudron and Gummow held at 77-78: The appellant sought declaratory and injunctive relief to restrain the developer proceeding without a valid development consent. The Council is the authority which had granted the consent upon which the developer relied. In those circumstances, and also having regard to the earlier litigation, it might have been expected that the Council would submit to such order as the Court might make and that it would not become a protagonist, lest by doing so it endanger the impartiality it would be expected to maintain upon any subsequent applications to it which might ensue were relief granted to the appellant. Their Honours added at 90: In a significant number of such litigious disputes, it will, in accordance with the reasoning in R v Australian Broadcasting Tribunal; Ex parte Hardiman [(1980) 144 CLR 13], be entirely appropriate for, if not incumbent upon, the local government body not to assume the position of a protagonist and to avoid incurring substantial costs. The position of protagonist will be filled by the party against which injunctive relief is sought and which is the real contradictor in respect of the application for declaratory relief. 28 In Kindimindi (above) at 275 [35] Cowdroy J said: The Court notes that the active role of the Council in defending its decision has significance to access to this Court. In proceedings challenging a development consent in this Court, it is almost always necessary to join two parties, namely the consent authority and the party having the benefit of the consent. Obviously where both parties take an active role, the costs involved may be more than double those involved in proceedings against a single party. Such costs would represent a formidable disincentive to the institution of proceedings, especially public interest litigation, in this Court, and would act as a severe limitation upon the access to the Court. As the High Court found in Oshlack, the Parliament of New South Wales has seen fit to broaden public access to this Court. The Court considers that for this reason a consent authority should in most circumstances submit to the orders of the Court in proceedings of this nature. 29 Oshlack and Kindimindi tell councils that it is usually inappropriate to actively defend their decisions where another active respondent is doing so, such as the holder of a challenged development consent. It would still be appropriate, I think, for a council to actively defend where there is a possibility of conflict between the respondents: Scott v Wollongong City Council (1992) 75 LGRA 112 at 126. The principle in Oshlack and Kindimindi must prevail, in my view, over any argument that where an issue is whether a council failed to give mandatory consideration to prescribed matters (such as under s 79C of the Environmental Planning and Assessment Act 1979), the disappearance of the submitting council from the forensic contest may diminish the illumination of the issue, since the council is in the best position to call evidence on that issue if it chooses to do so. ... 31 In [Develtor] the applicant had obtained declaratory relief in relation to a building approval in proceedings against the respondent council which filed a submitting appearance. There was no other respondent. Bignold J held at [42] that "the effect of the Respondent's submitting appearance in the present case, where that appearance has not been challenged or impugned, is that the submitting party is generally to be regarded as immune from any liability for costs incurred in the proceedings after the filing of the submitting appearance save as to costs (although conformably to principle and case law, the submitting party will be liable for costs incurred by the plaintiff up to the date of the filing of the submitting appearance)". With respect, in my opinion a successful applicant in declaratory proceedings should have all its costs reasonably incurred in obtaining declaratory relief, which include the costs of a hearing. That is because the applicant is not entitled to such relief merely because the respondents have submitted but must satisfy the court, by evidence and argument, that a declaration should be made ... ... 37 In the present case the council actively defended the proceedings and submitted earlier than the eve of the trial, but late; and the applicants seek no costs order against the developers. It may well be that most, perhaps all, of the applicants' costs were incurred prior to the council's submitting appearance. Be that as it may, a hearing was necessary in order for the applicants to obtain declaratory and injunctive relief. The hearing finished in a day due, probably, to the surrender of both respondents. This roughly corresponds with the day in court that the applicants had to have even if both respondents had submitted early. I therefore consider that the applicants should have an order for their costs of the proceedings against the council subject to the discount to which I have referred earlier. This is on the basis, addressed below, that the council should have an order for an appropriate proportion of those costs against the second respondent unless the council has engaged in disentitling conduct. 38 It was not submitted, nor am I satisfied, that the council's costs liability to the applicants should be reduced because additional costs were incurred by the applicants by reason of the developers unsuccessfully raising defences which the council did not raise. In such a case, depending on the circumstances, a council might not have to bear such additional costs.
His Honour went on to consider the question of costs as between the respondents, and held (at [48]) that the developers should pay the Council 50% of the costs it had been ordered to pay to the applicants.
His Honour, finally, considered the costs of the costs motions, deciding (at [49]): As regards the costs of the parties' respective notices of motion for costs, I consider that the council should pay 85 percent of the applicants' costs of the applicants' substantially successful motion against the council. The discount reflects the fact that the applicants have succeeded in obtaining an order for 85 percent of their costs of the proceedings rather than 100 percent as sought in their motion. The developers should pay the council's costs of the council's successful motion against the second respondents. There should be no order for costs in relation to the developers' unsuccessful motion against the council because the issues it raised substantially overlapped with the issues on the council's motion.
His Honour then laid out some "general guidelines" (at [50]): The following general guidelines may be formulated, based on the cases and principles reviewed in this judgment, for the exercise of the Court's discretion to order costs where • an applicant successfully brings proceedings that are necessary to have declared invalid or set aside a development consent or decision of a consent authority; • the consent authority and the beneficiary of the development consent or decision are necessary or proper parties; and • the cause of the invalidity is an error of or attributable to the consent authority and not to the beneficiary: (a) the applicant will ordinarily be entitled to be compensated by an award in its favour of the costs of the proceedings unless it has engaged in disentitling conduct. (b) where the beneficiary does not defend the proceedings, the applicant's costs will ordinarily be awarded against the consent authority, whether or not the latter enters a submitting appearance. This is because the cause of the litigation is the error of the consent authority and not of the applicant or the beneficiary. The consent authority cannot immunise itself from costs consequences of its own error by entering a submitting appearance because then a successful applicant cannot be properly compensated in costs. It is not sufficient that a consent authority should bear the applicant's costs only up to the time of the consent authority's submitting appearance because the applicant must continue to incur costs thereafter in order to establish, by evidence and argument at a hearing, that it is entitled to declaratory and injunctive relief. (c) where the beneficiary does defend the proceedings, albeit unsuccessfully, the applicant's costs will ordinarily be awarded against both the beneficiary and the consent authority, whether or not the latter enters a submitting appearance. The award of costs against the consent authority is because its error is the cause of the litigation. It cannot immunise itself from costs by entering a submitting appearance for the reason given in (b) above. The award of costs against the beneficiary is because it chose to defend the proceedings. A qualification is that the beneficiary alone may be required to bear the applicant's costs to the extent that they exceed the costs that the applicant would have incurred if both respondents had submitted, being costs attributable to defences that the beneficiary has unsuccessfully raised and the consent authority has not raised. An example may be a defence by the beneficiary that, notwithstanding an invalidating error by the consent authority, the court, for discretionary reasons, ought not to grant any relief. (d) where the consent authority has submitted and the beneficiary has defended but settles with the applicant who then seeks costs only against the consent authority, the applicant's costs will ordinarily be awarded against the consent authority and the latter will ordinarily be entitled to an indemnity for an appropriate proportion of those costs from the beneficiary, subject to the qualification referred to in (c) above. This situation may be unusual but it reflects the present case.

[17]

Brown

In Brown v Randwick City Council, the Chief Judge upheld a judicial review challenge brought by the applicant and declared invalid a DC granted by the 1st respondent Council to the 2nd and 3rd respondents (the Sandilands) - [2011] NSWLEC 172; 183 LGERA 382 - and later decided the reserved question of costs - (No 2) [2012] NSWLEC 28.
Costs orders were sought against all respondents, despite the failure of the applicant on some grounds of his challenge, which failures, the applicant claimed, accounted for only a small proportion of the preparation and hearing time.
The 2nd and 3rd respondents said that the applicant should receive only 50% of his costs on the basis of his limited success, and that only the Council should be ordered to pay those costs, because inter alia, Council was responsible for the errors found by the Court. They also sought an order that Council pay their costs.
Council also submitted that the applicant should recover only 50%, and it accepted that Council should be liable for them, but it submitted that the 2nd and 3rd respondents should also be liable, with Council, on a joint and several basis. It resisted those respondents' claims on Council for their own costs, as they had chosen to defend the applicant's claim.
Preston ChJ defined (at [6]) the issues as: "whether there should be apportionment of the applicant's costs; who of the respondents should be liable for the applicant's costs; and whether the Council should be liable for Mr and Mrs Sandilands' costs".
His Honour held ([8]) that the applicant had been successful "in the event, ... in establishing, and obtaining a declaration, that the Council's exercise of power to grant development consent was invalid".
His Honour said ([9]) that "One circumstance where the Court may consider it appropriate to make a different order as to costs is where multiple issues are involved and the successful applicant fails on one or more of the issues which are discrete from the issues on which the applicant succeeded".
After citing ([10]) several cases in which the principles governing apportionment had been summarized, His Honour said ([11] - [12]): 11 What is clear from these summaries of principles is that the mere fact that an applicant does not succeed on all issues raised in the proceedings is not sufficient by itself for the Court to depart from the usual rule and instead award costs only with respect to the issues on which the applicant did succeed. The issues on which the applicant did not succeed need to be "clearly dominant or separable" or "clearly discrete" from those on which the applicant did succeed: [James] at [32] and [34] respectively. In determining the discreteness of the issues, it is relevant to consider whether the time taken on each issue, at the hearing and in evidence, can be identified or realistically estimated: [James] at [35]. It may also be relevant to consider whether the issues on which the applicant did not succeed lacked real merit: see Centro Properties Ltd v Hurstville City Council [& Anor [2004] NSWLEC 718] at [21] and [23] and similar comments in the dicta quoted in [14], [16] and [20] and in McCallum v Sandercock (No 2) [[2011] NSWLEC 203] at [49(e)]. 12 In this case, I do not consider that the issues on which the applicant did not succeed are clearly dominant or separable; occupied such a significant time at the hearing that separate identification and estimation of the time spent on the issue is realistic; or lacked any real merit.
His Honour went on to analyse the progress and determination of the challenge, ground by ground, and concluded ([22] -[24]): 22 I am not persuaded that the notification issue was so clearly dominant or separable that it would be appropriate to attempt to differentiate that issue from the other issues on which the applicant was successful. 23 As with the other unsuccessful issues, I do not consider that the notification issue lacked any real merit. I made a finding that I could not draw an inference from all of the evidence that the notification letters were not sent. This was the reason the applicant did not succeed on this ground. However the raising of that issue, on that evidence, was not so unreasonable that it would be fair and just to make an apportionment order in respect of that issue. 24 Overall, therefore, I do not consider that the respondents have established sufficient circumstances to depart from the ordinary rule that costs should be awarded to the successful applicant without attempting to differentiate between those particular issues on which the applicant was successful and those on which it failed.
His Honour then turned ([25]) to Cutcliffe type issues, saying: 25 Ordinarily, where both the consent authority that grants a development consent or makes a decision and a beneficiary of the development consent or decision are joined as necessary or proper parties to a successful judicial review challenge to the development consent or decision, the successful applicant's costs will be awarded against both the consent authority and the beneficiary. As Biscoe J stated in [Cutcliffe] at [50], the award of costs against the consent authority is because its error is the cause of the litigation. The consent authority cannot immunise itself from costs by entering a submitting appearance because then a successful applicant cannot be properly compensated in costs. The award of costs against the beneficiary who chooses to defend proceedings and take an active part in them is because of that choice. If a beneficiary wishes to avoid costs, it must choose not to defend the proceedings. 26 In this case, the Council made a submitting appearance and Mr and Mrs Sandilands chose to actively defend each of the applicant's grounds of challenge and add their own s 101 defence and an argument that if a breach be established, the Court should decline relief in the exercise of its discretion. 27 I do not consider that Mr and Mrs Sandilands have made out a case for departing from the usual position that both the Council as the consent authority that made the errors that caused the litigation, and Mr and Mrs Sandilands as beneficiaries of the consent who chose to actively defend the proceedings but were unsuccessful in the event, should be liable to pay the applicant's costs. I therefore agree with the applicant and the Council, and reject Mr and Mrs Sandilands' argument, that all of the respondents should be ordered to pay the costs. However, in case there is a dispute arising from the fact that there are three respondents, I should make clear that the liability should be equal between the Council on the one part and Mr and Mrs Sandilands on the other part, that is to say, 50 per cent is to be paid by the Council and 50 per cent by Mr and Mrs Sandilands. Council's liability for beneficiaries' costs issue 28 The final issue is whether the Council should pay Mr and Mrs Sandilands' costs. I do not consider Mr and Mrs Sandilands have made out a case in the circumstances for an order that the Council pay their costs of the proceedings. True it is that the Council's errors caused the litigation. However, the Council did not continue to defend the applicant's claims; it filed a submitting appearance. Mr and Mrs Sandilands chose to defend the proceedings, as they were entitled to do. But having made that choice, the costs of the applicant in preparing for and conducting the hearing, and Mr and Mrs Sandilands' costs of defending the applicant's claim before and at the hearing, were a consequence of their choice actively to defend the proceedings. It would not be fair and just to order the Council to pay the costs of Mr and Mrs Sandilands' choice actively to defend the proceedings. Costs of the costs applications 29 The parties accept that the costs of the various applications for costs should be costs in the cause. I agree.
His Honour ordered (at [30]) that the 1st respondent, and the 2nd and 3rd respondents, pay the applicant's costs of the proceedings, including its costs of the applications for costs of the proceedings.

[19]

On appeal

In the Court of Appeal, Mr Rossi achieved an "improved level of success", on the substantive issues (Rossi v Living Choice Australia Ltd [2015] NSWCA 244; see also CA (No 2) at [18]), and Basten JA made the following comments, some of which, referring to Cutcliffe, it is now argued, ought to be regarded as obiter, and non-binding: 60 The real concern about the costs orders (raised by no party) was that the execution would require a complex assessment by each party of costs incurred with respect to particular issues which would not only be time consuming in itself, but would be conducive to further disputation. ... 68 Before the primary judge, the Council and the developer made submissions that the other should be liable in the event that costs were ordered to be paid by the respondents. In the event, the primary judge declined to apportion costs between the Council and the developer. 69 Apportionment may have been appropriate. The significance of the Council playing an active role, in apparent disregard of principles identified by the High Court in The Queen v The Australian Broadcasting Tribunal; Ex parte Hardiman and in Oshlack, was not addressed. It is not appropriate to revisit these principles, which are of some public importance, in a case in which no party sought to address them. Furthermore, there are separate questions as to the propriety of the Council taking an active role in litigation, the appropriateness of visiting costs of proceedings on a Council which does take an active role and the appropriateness of a costs order against a decision-maker which has filed a submitting appearance. It is sufficient to say that, in the circumstances of this case, Mr Rossi was faced with a respondent Council, which played an active role extending far beyond defence against the relief sought in respect of its specific functions, namely the notification of determinations. Nevertheless, it quite properly sought to remove itself from an active role when the question of final relief was being addressed. 70 As noted above, the developer did not make any freestanding challenge to the costs orders made by the primary judge: although the Council did raise an issue as to apportionment in its notice of cross-appeal, the ground was not pressed. Accordingly, it is sufficient that the costs orders against the respondents treat the Council and the developer as jointly and severally liable to the extent that they are liable for the costs to be paid to Mr Rossi. To the extent that it is also held liable, the regional panel will be jointly and severally liable as indicated in the orders to which reference was made above. 71 Nevertheless, the proposition that a submitting decision-maker should be liable for the costs of proceedings should not be accepted without further consideration. As a matter of principle, a submitting respondent should only be liable for the costs of a successful applicant incurred prior to the submitting appearance. The reason is that, thereafter, the costs of the litigation cannot be the responsibility of that party, which did not cause them to be incurred. A possible qualification to that principle may arise where the litigation is brought to have the decision of a court, tribunal or other statutory authority set aside and the decision-maker is the only respondent. Despite the lack of opposition, the court may require the applicant to satisfy it that relief is appropriate, a course which may involve some increase in the cost to the applicant. There is no great qualification of the general rule if the respondent (who will usually be a government authority) is required to bear the additional costs in such circumstances, despite entering a submitting appearance. 72 This was not such a case: the application brought by Mr Rossi was vigorously opposed by two active respondents. This case should not be treated as authority for the proposition that it is appropriate in such circumstances to award costs against the submitting decision-maker (beyond any costs which may have been incurred prior to the filing of the submitting appearance). The view that such an order might be appropriate appears to have resulted from the judgment of Biscoe J in [Cutcliffe]. The trial judge in Rossi (No 6) at [98] sought to rely upon a principle set out in Cutcliffe in the following terms: "(c) where the beneficiary [of the decision] does defend the proceedings, albeit unsuccessfully, the applicant's costs will ordinarily be awarded against both the beneficiary and the consent authority, whether or not the latter enters a submitting appearance. The award of costs against the consent authority is because its error is the cause of the litigation. It cannot immunise itself from costs by entering a submitting appearance for the reason given in (b) above." 73 The circumstance engaging par (b) in Cutcliffe was that the beneficiary of the decision does not defend the proceedings; it was then said that the reason why the consent authority could not "immunise itself from costs consequences of its own error by entering a submitting appearance [was] because then a successful applicant cannot be properly compensated in costs." But that cannot be true in the case of proceedings which are actively defended by another party. The mere fact that the decision-maker is ultimately found to have erred in its approach is not, of itself, a sufficient reason to order costs against it, being costs incurred after the entry of a submitting appearance. So far as the guidelines in Cutcliffe suggest otherwise, they should not be applied. ... 77 My tentative view is that the Council and the developer should pay 80% of the appellant's costs in this Court. As they did not seek apportionment between them as to the costs of the trial, it may be assumed that they will not seek apportionment of the costs of the appeal. Nevertheless, the outcome not being entirely predictable, it is appropriate to grant each of the active parties an opportunity to seek a different costs order if he or it wishes. Submissions in that regard should be made within the timetable provided with respect to the plans for amelioration. Submissions on costs should be limited to three pages.

[20]

Costs in both Courts in Rossi

Basten JA "tentatively proposed" (at [63] of his substantive appeal judgment) that Rossi should receive 65% of his costs, but the Court of Appeal then invited the parties to make written submissions on costs (as well as on the form of final ameliorative relief), for its determination on the papers.
As in the present case, very divergent costs submissions resulted.
There were two active respondents and one submitting respondent in the appeal proceedings, and all three active parties were represented by senior counsel in both the appeal itself and in the costs/relief hearing.
Rossi sought the whole of his costs, both at first instance and on appeal, and thought the active respondents ("Living Choice", and the Council) should be ordered to each pay 50%.
Living Choice accepted Basten JA's suggested 65% as appropriate, but argued (1) that Rossi should get only 50% of his costs on appeal, on (2) that the "allocation" of the burden of the costs at first instance be slightly varied.
Council sought an order that Rossi pay 50% of its costs at first instance, or its costs of discrete issues upon which it claimed it had succeeded. In respect of the appeal the Court of Appeal noted that: "somewhat confusingly", Council sought orders that Rossi pay "50% of its costs in this Court, and that it pay Rossi 10% of his costs of 'the appeal'": (No 2) [2015] NSWCA 301, at [12] - [14]. (At [27] the Court commented that "the position adopted by the Council was not entirely coherent").
The Court of Appeal also commented (at [16]): The parties' submissions on costs demonstrate the wisdom of a broad brush global approach to minimise ongoing disputes in what has been a complex and highly contentious matter. It would seem likely that further expense would be incurred if costs were to be determined on an issue by issue basis.
That comment could apply equally to the costs argument in the present case, which was also "complex and highly contentious".
The Court of Appeal noted that, even though Rossi had achieved an "improved level of success" against Living Choice on the appeal, it had failed to achieve "total or even substantially full success at the trial" ([24]). It increased the suggested 65% figure, for the trial costs, to 70%.
The Council submitted that Rossi was "almost wholly unsuccessful" against it, as distinct from the submitting JRPP ([28]). The Council was not in that case the decision maker, but the Court considered that Council and the JRPP should share responsibility for Rossi's costs in respect of deficiencies in the decision-making process ([30]).
The Court of Appeal concluded, regarding the costs in this Court (at [32]): Contrary to Mr Rossi's position, it is not appropriate to award costs against the separate respondents individually. Consistently with the approach adopted above, it is not in the interests of the efficient disposal of this case to apportion costs according to issues. Rather, Mr Rossi should recover a defined proportion of his costs, for which each of the respondents will be jointly and severally liable. Because there is no agreement between the respondents as to their respective liabilities, the Court should indicate the proportions as between them which it considers appropriate, as in a determination of cross-claims between defendants. The appropriate course is to apportion the liability of Living Choice at 65% of Mr Rossi's recoverable costs and the Council's liability at 35%. The Council's share should include that of the JRPP, so that any contribution made by the JRPP to Mr Rossi's costs will count, as between the Council and Living Choice, as a payment of Council's share. The result, in round terms, is that as between themselves, Living Choice will be liable for 45.5% of Mr Rossi's costs of the proceedings in the Land and Environment Court and the Council (and the JRPP) will be responsible for 24.5%. (Mr Rossi will carry 30% of his own costs of the trial.)
In respect of the costs of the appeal, Rossi argued ([34]) that they were "substantially inflated by the Council's active role in the appeal". He sought all of his costs of the appeal, but Living Choice submitted that it and Council should be liable each for half of only 50% of his costs, "to reflect his limited success" ([35]), achieving "only a modest change to the outcome ... at first instance ... at great additional costs to all parties".
The Court of Appeal concluded (at [43] - [45]): 43 As with the costs of the trial, there should be a global assessment. The Council's allocation of success and failure cannot be accepted. Living Choice made a more realistic assessment of the extent of Mr Rossi's degree of success, but by reference to the practical outcome, rather than the issues for determination. The fact that Living Choice might have accepted something akin to the practical result at an early stage is beside the point; it fought Mr Rossi strenuously in this Court (and at trial). On the other hand, Mr Rossi's assessment of substantially total success was unrealistic. It is true that demonstrating a sound basis for holding a planning consent to be invalid is an important outcome, but the availability of relief under s 25B limits the consequences. The appropriate assessment is to order that the Council and Living Choice be jointly and severally liable for 75% of Mr Rossi's costs on appeal. 44 The failure to achieve a final resolution as to the ameliorative relief requires that the post-hearing costs should be treated as costs on the remitter. Further, Mr Rossi has not achieved what he sought as to costs orders. Thus Mr Rossi's costs of the appeal should not include any costs incurred post-hearing. 45 The respondents should be jointly and severally liable to Mr Rossi for the relevant proportion of his costs of the appeal, but should bear responsibility equally as between themselves.

[21]

Probiotec

In the present case the respondents placed some reliance on the Full Federal Court's 2008 decision, and some remarks made by Rares J, in a patent dispute appeal: Probiotec (see [49] in [77] above).
The trial judge (Tamberlin J) ordered "the Probiotec parties" jointly and severally, to pay the full costs of infringement proceedings and a cross claim: [2007] FCA 523.
The three appeal judges reduced that costs liability to 10%, with the principal judgment being delivered by Rares J. Besanko J agreed with the orders Rares J proposed, and "with the substance of [his] reasons, subject to one matter". Finn J agreed "generally with their respective reasons, and with orders proposed by Rares J".
Rares J noted (at [2]) that the costs question on the appeal was: Should a party which files a defence denying both its infringement of a patent and the validity of that patent, but then takes no further steps in the proceedings, other than to comply with orders for discovery, be liable for the full costs incurred by the party successful in enforcing its patent rights when the proceedings are actively defended by other parties? ...
The primary judge had answered the question by holding the non-participating party jointly and severally liable for the full costs of the proceedings, including the 10-day trial. The University parties claimed costs against both the NSI parties and the Probiotec parties. The University parties alleged that all the cross-respondents were jointly and severally liable for all costs that they had incurred. However, by the time of the costs application, the NSI parties were no longer legally represented and did not appear at that hearing, although they filed written submissions to which his Honour had regard.
The trial judge noted that the Probiotec parties had argued that even though relief had been granted against them they should not be liable for costs on the basis that they had taken no active part in the proceedings. He found that the Probiotec parties:

were not claimants on NSI's claim challenging the validity of the University parties' patents;
took no active part in argument or the conduct of the principal proceedings.

However, his Honour held that because the Probiotec parties had denied infringement and asserted invalidity (in the event infringement was proved) they were content to allow the NSI parties to put their case and to rely on the same submissions which the NSI parties advanced. He concluded that when regard was had to the limited and conditional nature of the undertakings by the Probiotec parties and their failure to withdraw their pleadings as to invalidity, their approach to the litigation was not simply one of submitting parties. He held that because the Probiotec parties had put the University parties to proof of their claims of infringement and had denied the validity of the complex patent "… the general principle applies, namely that costs will follow the event". He found that the University parties were "therefore … entitled to their costs against the Probiotec parties including costs on the question of validity and infringement" (Rares J at [2], and [29] -[32]).
His Honour examined, in more detail (at [33] - [36]), the running of the case, and then noted ([37] and [38]): 37 In the event his Honour ordered that all the cross-respondents were jointly and severally liable for the costs incurred by the University parties in respect of the claim for unjustified threats, the cross-claim for patent infringement and the cross-claim for patent invalidity. ... 38 The liability for costs which his Honour imposed on Probiotec parties extended well beyond the issues on which they had been sued and about which they put the University parties to proof by the formal denials and non-admissions in their defences.
The costs discretion exercised in Probiotec, both at first instance and on appeal, was exercised under s 43 of the Federal Court of Australia Act 1970, which provided: (1) Subject to subsection (1A), the Court or a Judge has jurisdiction to award costs in all proceedings before the Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs shall not be awarded. … (2) Except as provided by any other Act, the award of costs is in the discretion of the Court or Judge."
Rares J noted: 46 The words of s 43(2) create a discretion as to costs which is unconfined. The section derives directly from the Judicature Acts 1873 (s 49) and 1890 (s 5) (UK): see Donald Campbell & Co Ltd v Pollak [1927] AC 732 at 805. A similar discretion was conferred on the Land and Environment Court of New South Wales by s 69(2) of the Land and Environment Court Act 1979 (NSW) and the operation of that section was considered in [Oshlack]. There is no automatic rule that costs always follow the event: [Foots] at 39-40 [26]-[27], 41 [34] per Gleeson CJ, Gummow, Hayne and Crennan JJ. ... 48 There is no absolute rule that, in the absence of disentitling conduct, a successful party is to be compensated by the unsuccessful party with respect to the exercise of a power conferred by a provision such as s 43: Oshlack 193 CLR at 88 [40] per Gaudron and Gummow JJ. And, there is no absolute rule that the sole purpose of a costs order is to compensate one party at the expense of another under the Judicature Act system, such as is provided by s 43 of the Act: Oshlack 193 CLR at 89 [43]. The general power conferred by a provision like s 43 is not to be narrowly construed. On the other hand, where there has been some delinquency on the part of an unsuccessful party, the Court has power to order costs against that party, and sometimes on a scale greater than party/party costs: Oshlack 193 CLR at 89 [44] per Gaudron and Gummow JJ. ... 60 The decision in Oshlack 193 CLR 72 made clear that the award of costs under s 43(2) of the Act and its analogues is a discretionary exercise which depends upon the facts of each case. While courts can identify factors which are relevant to consider in exercising the discretion conferred by s 43(2), they cannot impose or apply particular factors as an inflexible rule. Of course, a wholly successful party will usually be entitled to costs because the justice of the usual case, prima facie, suggests that this will be appropriate.
His Honour concluded ([71] - [78]) that: 71 ... the Probiotec parties did not play any substantive role in the proceedings or contribute significantly to the overall costs of the proceedings. Their defences required issues affecting them to be determined, which were also common to some other respondents, [but] the University parties sought to assert and enforce their rights under the various patents. Even if the Probiotec parties had completely submitted to any order of the Court and had consented to having judgment entered against them, it would not have been appropriate for the Court to make such orders declaring the patents valid merely in default of their appearance or by consent, since the claim against the NSI parties still had to be litigated. The Probiotec parties put the University parties to formal, not fully contested, proof of the validity of the complex and phosphopeptide patents. They said that they would abide the result of the proceedings fought out by the NSI parties. 72 I am of opinion that it would be unjust to subject the Probiotec parties to an order for costs in respect of the whole of the infringement proceedings. They had not been joined for the first year of the proceedings, in which considerable costs would have been incurred preparing for two hearings, each of which was vacated. There are thus strong reasons against making any order for costs against them in respect of that period at least: ... It was open to the University parties to have joined the Probiotec parties at any time. If they were to be made liable for costs for the period of a year prior to their joinder to the proceedings, some basis beyond the ultimate orders vindicating the University parties' rights would be required. In my opinion the orders visited upon the Probiotec parties created substantial injustice to them. The University parties have not been able to point to any factors which justify such a result. 73 In most proceedings where one party fails, it will be "usual" and just to order that party to pay the successful party's costs. Often it will be unexceptionable for the Court to proceed upon the basis that the successful party should have the benefit of an order for costs in that party's favour because the substantive decision of the proceedings warrants that outcome. But, there was a marked difference here between the positions of the NSI parties, who were active protagonists in the battle, and the Probiotec parties, who were found by his Honour to have taken "no active part in argument or in the conduct of the proceeding" (NSI Dental [Pty Ltd v University of Melbourne] [2007] FCA 523 at [23]). In my opinion, the Probiotec parties did not put the University parties to the expense of the fully contested hearing conducted against the NSI parties. Once the Probiotec parties had pleaded a denial of the validity of the complex patent and had not admitted the validity of the phosphopeptide patent, the University parties were obliged to prove their validity as against them. But that proof would have been in an uncontested trial had the NSI parties not been actively pursuing their similar defences and the separate invalidity proceedings. The costs which were incurred by the University parties were due largely to the extensive contest fought out between them and the NSI parties in which the Probiotec parties took no part. There is no basis to throw onto the Probiotec parties the whole burden of costs based on the conduct of the NSI parties. 74 Here, on the evidence and the material before his Honour, the Probiotec parties took the position that they did not believe that they had done anything wrong in relation to the complex patent or the phosphopeptide patent, but they did not wish to pursue those activities unless the Court held, in litigation being contested by the NSI parties, that those patents were invalid. In other words, the Probiotec parties indicated that, subject to their formal pleading denying and not admitting validity of the two patents, they acquiesced in the result of the proceedings, and would abide his Honour's decision. The Probiotec parties did stand to gain if the NSI parties were successful, but there is no evidence of the Probiotec parties acting so as to cause the NSI parties to conduct the litigation in a way in which made it appropriate to order that all the relevant costs be also payable by the Probiotec parties. 75 In reaching this finding I am mindful that there were commercial relationships between some of the NSI parties and some of the Probiotec companies. But, those relationships did not constitute the Probiotec parties as the "real" party. Nor did they establish a causative reason for the incurring by the University parties of the costs of fighting the proceedings involving the NSI parties. ... 77 I consider that it would be just to allow the appeal and vary his Honour's order so that the Probiotec parties pay 10%, rather than 100%, of the costs that he ordered them to pay. Having regard to the whole of the matters before the Court, this would have the effect that the Probiotec parties will pay approximately for the costs of preparing for and conducting a one day uncontested trial. It is not possible to dissect with any scientific accuracy some more precise means of allocating a just distribution of the costs. The participation of the Probiotec parties required some work to be done in any event by the University parties to satisfy his Honour that they were liable to the extent he found. Although I have disagreed with his Honour's decision that the Probiotec parties were responsible for the University parties' costs of their defence of NSI's claims for unjustified threats and its cross claim for patent invalidity, I think that the moulding the order for costs in the way I have done will result in a fair outcome. I recognise that this method of assessment involves some imprecision, but it is unavoidable in a case like this. 78 The Probiotec parties should have the costs of the appeal.
Rares J noted (at [76]) the requirement that a court find it "just" to make the order upon which it decides: This is inevitably to some extent a fact-specific jurisdiction [in which] ... there will often be a number of different considerations in play, some militating in favour of an order, some against.

[22]

Conclusion

Such a detailed survey of the authorities indicates only that courts carefully consider each case on its own facts, and fashion appropriate costs orders, against the background of the principles that costs should normally, but not automatically, follow the event, and that substantial justice must be done among all parties.
Nothing in the learned and authoritative judgments I have quoted above persuades me that the "costs follow the event" principle should not apply in the present case, and this does not appear to me to be an appropriate case for apportionment of costs on the basis of either issues won or lost, or the proportions of hearing time spent on them.
The central issue in this case was the contested validity of the DC - the primary grounds of challenge concerned permissibility, and the secondary grounds concerned errors made in the approval process.
The applicant won "almost all the battles along the way to a decisive victory in the war" (see applicant's submissions filed 9 November 2015, par 28, and c.f. GPT Re at [15] - see [114] above).
Its preparation for the one ground upon which it was unsuccessful served also as preparation for those upon which it succeeded, and it is also entitled to its costs on those issues which did not need to be determined (subs pars 22 and 34, and Bailey, at [118]). The unsuccessful primary ground did not satisfy the test in Bostik ([50] and [88] above).
In the end, the applicant was entirely successful in its challenge, and in obtaining the outcome it sought, namely a declaration of invalidity, and a "stop" on the present project, albeit that the decision does not prohibit all future planning for, or development on, the subject site.
The applicant is entitled to a costs order in its favour.
The burden of those costs should fall equally on the 1st and 2nd respondents, which gain no exemption as a consequence of the public interest character of the applicant's proceedings.
However, the applicant's costs position is somewhat complicated by the costs orders already made in the case by others, some by consent: 1. The applicant and the 2nd respondent are bound by the agreement they reached before Craig J on 17 May 2013 that they each pay their own costs to that date ([18] above); 2. The applicant and the 1st respondent remain subject to Biscoe J's order of 16 May 2012 making their costs on some early NsOM "costs in the cause" ([11] above); 3. The costs of the directions hearing of 21 August 2015 were reserved by Biscoe J ([44] above); and 4. The costs of the leave application made by the applicant on 27 August 2015, and granted by Biscoe J on 11 September 2015, were deferred to this hearing ([45] above).
Accordingly, Order (4) in judgment No 2 (see again [39] above) will need to be amended to accommodate item (a), and may need to accommodate items (b), (c), and (d).
In regard to item (b), the Council accepts that it should pay the applicant's costs on the NsOM, so the views of the Crown Respondents on that question need not concern the Court.
In regard to item (c), the parties' respective costs of the directions hearing dealing with the resolution of the costs dispute should form part of their respective costs on that dispute.
In regard to item (d), the applicant, post-judgment, was entitled to protect its position under my Order (4), as part of the continuing dispute about costs. Its late NOM was in response to the actions of the respondents in seeking "different" costs orders, and the applicant's costs thereof form part of its costs on the costs dispute.
I consider the applicant to have been entirely successful in all the disputes I have heard on costs, and it should have its costs on those motions, and also on items (b), (c) and (d).
The Orders of the Court will, therefore, be: 1. Order (4) made on 11 May 2015 is discharged, and in lieu thereof the Court now makes the following orders: (4) The 1st and 2nd Respondents are each to pay 50% of the Applicant's costs of these proceedings, on a party-party basis, as agreed, or as assessed according to law, subject to the following: (a) the 1st Respondent alone is to pay the Applicant's costs on the Notices of Motion determined on 16 May 2012; and (b) the 2nd Respondent is responsible only for 50% of the Applicant's costs incurred after 17 May 2013. 1. The 1st and 2nd Respondents are each to pay 50% of the Applicant's costs on their Notices of Motion for costs, and of the Applicant's costs of its Notice of Motion dated 27 August 2015, and all directions hearings concerning the hearing on costs. 2. The two folders of documents produced by the Council and the two volume "joint hearing tender bundle" produced by the Crown Solicitor may be returned.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (23 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (36)

Cited By (4)