Kalhmera Pty Ltd v Planning for People Incorporated & Ors [2025] NTSC 36

• [1] On 5 July 2024, I set aside the decision of the Northern Territory Civil and Administrative Tribunal (the Tribunal) of 8 March 2023 and sent the proceeding back to the Tribunal for reconsideration.[1]
• [2] The applicant seeks an order that the first respondent pay its costs of and incidental to these proceedings on the standard basis, to be taxed in default of agreement.
• [3] The parties are in agreement that there should be no order for costs against the second or third respondents.

• [4] The applicant relied upon the "general rule" that in exercising the Court's discretion the starting point is that costs follow the event. That is, the successful party is entitled to receive its costs unless its own behaviour prevents it from benefiting from the discretion.[2]
• [5] The applicant argued that there was no "good reason"[3] to depart from the general rule in this case because it was successful on both grounds of its appeal, and there was no "disentitling conduct" that would prevent the applicant from receiving a costs order in its favour.

• [6] The first respondent argued that the relevant "event" is the "ultimate outcome for the case", but may extend to every issue in the proceeding, and that a differential approach is appropriate here because on analysis the applicant was not wholly successful, and the first respondent was not wholly unsuccessful.
• [7] The first respondent argues that the primary relief sought by the applicant that was that this Court should substitute its own decision for that of the Tribunal, and confirm the Development Consent Authority's (DCA) determination. That relief was not granted, instead the matter was remitted to the Tribunal in its entirety.
• [8] The first respondent submitted that because it conceded the second ground of appeal at the hearing, the inevitable result was that the matter would have been remitted to the Tribunal in the event that the applicant was unsuccessful in its submission that this Court should substitute its own decision.
• [9] It was the first respondent's ultimate submission that, given the relief granted by the Court aligned with the relief sought by the first respondent (not the applicant), and considering the reasonableness and value of the first respondent's conduct and position in the proceedings (as the sole contradictor making submissions in the public interest), the appropriate costs order should be that there be no order as to costs.

• [10] The general rule is that costs are in the discretion of the Court.[4] The discretion must be exercised judicially. A successful party will ordinarily be awarded its costs, although that rule may be departed from where a differential costs order is appropriate.[5] Such an order may be made where (a) the successful party has "unfairly, improperly or unnecessarily increased the costs," including by pursuing unmeritorious arguments; (b) the majority of time has been taken on an issue where the unsuccessful party has succeeded, even if the successful party has acted reasonably in raising those issues; and/or (c) where a particular issue or group of issues is manifestly dominant or separable and the application of the general rule may involve hardship on an unsuccessful party, which has nevertheless succeeded on that issue or group of issues.[6]

• [11] There was no suggestion by the first respondent that the applicant behaved unfairly, improperly, or unnecessarily increased the costs of the proceedings.

• [12] The dominant issue, which occupied the most time, was the substance of ground one, being whether the Tribunal erred in law in finding that the DCA had manifestly failed to take into account the matter in s 51(1)(n) and (e) of the Planning Act 1999 (NT).[7]
• [13] However, the first respondent's argument unduly simplifies the matters which were in issue. Although the first respondent's position overall was that the proceeding should be remitted to the Tribunal, because it conceded that the Tribunal had failed to discharge its function, in relation to ground 1 it argued that the Tribunal's finding that the DCA had manifestly failed to consider the relevant criteria in s 51 should not be disturbed. The first respondent was unsuccessful on that issue.
• [14] The question of remitter or substitution of decision was a separate and subsequent issue which occupied far less time in the proceeding.[8] Therefore, although there were several issues argued, it cannot be said that the majority of time was taken on an issue where the unsuccessful party succeeded. Therefore, I do not consider it appropriate to dissect these proceedings by issue for the purpose of an award of costs.

• [15] Sometimes, where litigation is "in the public interest" that fact may operate such that there should be no order for costs against an individual or community group which brings an application in a matter in relation to which they have no personal, legal, or financial interest.[9] In proceedings before the Tribunal, although there is power to make a costs order, the general rule is that parties will bear their own costs.[10] There is, however, no special provision in the Northern Territory Civil and Administrative Tribunal Act 2014 (NT), or in the Planning Act, limiting the discretion to award costs in planning appeals. There is no limitation upon this Court's power to award costs on an appeal from the Tribunal on a question of law.
• [16] There are no clear categories of public interest litigation, and no rule that costs will not be awarded against an unsuccessful party such as the first respondent. Although planning matters are likely to be of general interest to the public, that in itself is not a sufficient reason to refuse costs to the successful applicant. An award of costs is not made to punish an unsuccessful party but to compensate a successful party for the expense it has been put to as a result of the proceeding.[11]

1. This was not a case in which a party sought to clarify a right or determine a significant issue as to the interpretation and future administration of the relevant statutory provisions.[12] In the circumstances, there is no public interest reason to deny the successful party its costs.

(a) The first respondent is to pay the applicant's costs of the proceeding on a standard basis, to be taxed in default of agreement.

(b) There is no order as to costs in relation to the second or third respondents.

[1] Kalhmera Pty Ltd v Planning for People Incorporated & Ors [2024] NTSC 48 ('the principal judgment').

[2] Applicant's submissions at [3] citing Milne v Attomey-General for the State of Tasmania [1956] HCA 48; (1956) 95 CLR 460, 477; Oshlak v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72.

[3] Applicant's submissions at [3] citing Milne v Attorney-General for the State of Tasmania [1956] HCA 48; (1956) 95 CLR 460.

[4] Supreme Court Rules 1987 (NT), r 63.03(1).

[5] Value Inn Pty Ltd v Proprietors of Unit Plan 2004/048 [2020] NTCA 8, [31] per Grant CJ and Mildren AJ, and the authorities there cited.

[7] The majority of the principal judgement reasons deal with ground one (see [16]-[64]). Comparatively, ground 2 was dealt with in paragraphs [65]-[78].

[8] The principal judgement considers this succinctly in paragraphs [79]-[81].

[9] Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 ('Oshlack'), [114] per Kirby J.

[10] Northern Territory Civil and Administrative Tribunal Act 2014 (NT), ss 131-114.