Parkroad Projects Pty Ltd v Luckey & Anor [1999] NSWSC 241 | Case summary

JUDGMENT (Re Costs) 1 HIS HONOUR: In this matter I gave my decision dismissing the appeal yesterday. I ordered the plaintiff to pay the first defendant's costs. Mr Quickenden for the Minister for Fair Trading ("the intervener") then sought an order for costs in favour of the intervener as and against the plaintiff appellant. The matter was adjourned overnight in order for the parties to give consideration to the application made by Mr Quickenden. 2 This morning I have heard oral argument from both Mr Marshall and Mr Quickenden. Mr Marshall opposes an order for costs in favour of the intervener. Mr Quickenden submits that I should make some order. 3 Section 86 of the Fair Trading Act confers a right upon the Minister for Fair Trading to intervene in these proceedings. Upon intervening, the Minister becomes a party to the proceedings possessing all the rights including rights of appeal of a party to the proceedings. There is nothing to suggest that such rights do not include rights in relation to costs. Indeed, it has not been submitted that the rights do not include an intervener's right in relation to costs. 4 Section 76 of the Supreme Court Act 1970 (NSW) provides, that subject to the Act and Rules and subject to any other Act, that costs shall be the discretion of the court and that the court shall have full power to determine by whom and to what extent costs are to be paid. That section confers a discretion as to costs. That discretion must, of course, be exercised judicially. So much is accepted by both the plaintiff and the intervener in the present case. 5 Part 52 Rule 4 provides that the powers and discretions under s 76 of the Act shall be exercised subject to and in accordance with that part. It has been accepted by the parties that pursuant to s 76 and Part 52 that an order for costs can, in fact, even be made in certain circumstances or, indeed, in the appropriate circumstances, against an intervener who intervenes pursuant to s 86 of the Fair Trading Act 1987 (NSW). That said, it is accepted by the parties that the court has a judicial discretion to make an order for costs in favour of an intervener who under s 86, becomes a party to the proceedings. 6 Part 52 Rule 11 provides that if the court makes an order for costs, the court shall, subject to Part 52, order that costs follow the event except where it appears to the court that some other order should be made as to the whole or any part of the costs. 7 Section 76, as I have said, confers a discretion and a full discretionary power righting to the matter of costs which is further recognised by Part 52. 8 The dispute appears to be, therefore, one relating to how I should exercise the discretion that I have, and which it is conceded that I have, in respect of this particular matter. Mr Marshall has submitted that in the circumstances I should make no order for costs, in respect of the matter of intervention or in favour of the intervener. 9 As I have said, it is common ground, as I understand it, that the costs principles are derived from s 76 and the Rules. I have been taken to a number of authorities and particularly authorities which deal with the position of costs of an intervener where there has been intervention pursuant to s 78 A(2) of the Judiciary Act. That provision is not, however, a parallel provision to the provisions of the type that I am presently considering in this case. Further, it is a provision which permits of the court, in circumstances where it applies, to make, in effect, a one-sided order for costs as and against the Commonwealth or State who intervenes in proceedings where s 78 A(2) applies. (See O'Toole v Charles David Pty Ltd (1990), 171 CLR 232 at pages 310 to 311.) 10 The matter of intervention and amicus curiae was considered by the High Court in Levy v State of Victoria (1997) 189 CLR 579. In that case there were a number of applications by parties to intervene or to appear as amicus curiae. At p 650, Kirby J observed, for good reason, the court should maintain a tight rein on interventions and where such interventions were permitted the court should impose terms which protect the parties from costs and or burdens which interventions may occasion. Of course, the situation in Levy is different to the instant one where there was an intervention not pursuant to leave, but in a situation where there was an intervention as of the right by the Minister pursuant to s 86 of the Fair Trading Act. The plaintiff and the first defendant both or either were not in a position nor had a right to oppose such intervention being and one of right conferred by statute. 11 Nevertheless, I would consider it appropriate to repeat what was said in a different context in Levy's case by Kirby J, particularly at p 651. His Honour said: "The court itself retains full control over its procedures. It will always protect and respect the primacy of the parties. Costs and other inhibiting risks will, almost always, discourage officious busybodies. Those who persist can usually be recognised and easily rebuffed". 12 It has not been suggested in the instant matter that the intervention by the Minister was the intervention by a busy body nor has it been suggested such intervention could have been rebuffed by either the plaintiff or the first defendant, as the case may be. Nevertheless, I consider the point that Kirby J makes is of some relevance in the instant case. The court should respect the primacy of the parties. The court should respect that this litigation, which has come on appeal, was a private litigation between two private litigants. Neither of them in the circumstances invited the intervention either before the Residential Tenancies Tribunal or, indeed, in this Court. The intervention was rather imposed upon them. 13 Mr Quickenden in his very helpful submission has argued that it was not suggested that the intervention had been inappropriate. That is true. Nevertheless, it could not have been legally argued that intervention could or should have been barred by the court. 14 Next, Mr Quickenden argued that had the plaintiff been successful in the appeal, that it was probable that the first defendant and intervener, both or either, would have been ordered to pay the plaintiff's costs. However, that argument is somewhat hypothetical and speculative. The simple fact is that the plaintiff was not successful and, hence, one does not have to consider what might well have been the situation had the decision been otherwise. 15 Mr Quickenden argued that intervention here was, indeed, warranted, first of all, by virtue of s 86, the intervener became a party and, secondly, because of the matter of merit, that needed to be considered in the matter. He argued that the construction of the Act urged by the plaintiff would have diminished the role of the Residential Tenancies Tribunal. 16 I have had regard to these submissions. As I would understand this case, during the substantive appeal, as regards the matter of result, or what was urged to be the appropriate result, the Minister supported the position of the first defendant, namely, that the Tribunal's decision was right and that the appeal should be dismissed. 17 The Minister also supported and identified one of the constructions or the interpretations of the legislative provision, that had been urged by the first defendant. To the extent that such construction found favour with me, there was a degree of duplication and overlapping in relation to the argument advanced, in respect of that particular matter. Strangely enough, in respect of a matter that was urged by the plaintiff, namely, that relating to the court's jurisdiction, the Minister identified himself with the plaintiff's argument on that point. 18 The first defendant had submitted that in circumstances where the plaintiff had consented to the Tribunal having jurisdiction as it did in the instant case, an argument was not available to the plaintiff, to the effect that despite such conduct, on appeal, this Court could find that there was, in fact, no jurisdiction. I indicated in my reasons yesterday that I considered such argument was at least unmeritorious in the circumstances of this case. Nevertheless, the plaintiff contended that despite its consent in the Tribunal below, that, nevertheless, the jurisdictional point could still be validly raised on appeal. 19 The Minister in a most helpful submission rather seemed to have adopted the position that the plaintiff was right on that point. So, to that extent, there was some degree of overlapping and duplication, in respect of argument, which has been referred to as the jurisdictional argument, or alternatively, an argument, by both defendants. 20 For these extempore reasons, in respect of a somewhat interesting costs question, I believe that in the circumstances of this case and in the exercise of my discretion, that I should make no order for costs in the dispute between the plaintiff and the intervener. In the exercise of my discretion I decline to make an order that the plaintiff pay the intervener's costs.

Parkroad Projects Pty Ltd v Luckey & Anor

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