Supreme Court Civil Procedure Act 1932, s 12.

Supreme Court Rules 2000, r 672(6).

Appeal Costs Fund Act 1968, s 8.

Bowen Investment Pty Ltd v Tabcorp Holdings Ltd No. 2 [2008] FCAFC 107; Sze Tu v Lowe (No. 2) [2015] NSWCA 91; Leppington Pastoral v Chief Commissioner of State Revenue [2017] NSWSC 68; Sultan Holdings Pty Ltd v John Fuglsang Developments Pty Ltd and Ors [2017] 27 Tas R 407, referred to.

Judgment Number: [2022] TASFC 13

SALTWATER LAGOON PTY LTD v GLAMORGAN SPRING BAY COUNCIL

1. The second respondent pay the appellant's costs of and incidental to the appeal, to be taxed unless agreed.
2. The application under the Appeal Costs Fund Act 1968 is refused.

SALTWATER LAGOON PTY LTD v GLAMORGAN SPRING BAY COUNCIL

1. I have had the advantage of reading the reasons of Geason J in draft form. I agree with his Honour's conclusions and the orders he proposes.

SALTWATER LAGOON PTY LTD v GLAMORGAN SPRING BAY COUNCIL

1. The appellant was successful before this Court in its appeal from a decision of the Resource Management & Planning Appeal Tribunal. The Court's judgment is published at [2022]TASFC 5 and those reasons inform this decision.
2. The appellant agitated four grounds of appeal. It succeeded on one of those grounds. Ground 3 did not require decision in light of the Court's upholding Ground 1. The other grounds were dismissed. It makes application for an order against the second respondent, Coles Bay Holdings Pty Ltd, for costs "of and incidental" to the appeal.
3. The second respondent opposes the application. It submits that because the appellant was successful on only one ground of the four it argued, it is "just" to make an order apportioning costs in accordance with the result, such that it would be responsible for meeting only 25% of the appellant's costs. In the alternative, and irrespective of any order apportioning costs, it seeks an indemnity certificate pursuant to s 8(1) of the Appeal Costs Fund Act 1968.
4. The appellant submits that in the exercise of the discretion as to costs, the presumption that cost "follow the event" should be applied. It rails against an issue-by-issue approach, submitting that there was no disentitling conduct on its part which would require such approach. It submits that there is nothing which would justify the Court departing from the order that would ordinarily be appropriate for a party which has obtained judgment in its favour.

• 6 The power to make an award costs in s 12 of the Supreme Court Civil Procedure Act 1932, is expressed in discretionary terms. Rule 672(6) of the Supreme Court Rules 2000[1] is applicable. It is expressed in terms which confer a discretion to make any order as to costs that "appears to the Full Court to be just". Such order may provide that a party pay "the whole or any part of the costs" of another party to the appeal. The default position if no other order is made is that costs "follow the event ".

1. The event is the "event of the claim and maybe understood as referring to the practical result of a particular claim": Sze Tu v Lowe No 2 per Gleeson JA, Meagher JA and Barrett JA agreeing, citing Windsurfing International Inc v Petit [1987] AIPC 90 - 441 at 37, 861 - 37, 862. The event in the context of this appeal, is the Court's order quashing the determination of the Tribunal. The notice of appeal sought such order.
2. Underpinning the submission that fairness requires an order apportioning costs is the proposition that the Court has the power to make an order for costs that takes into account issues won and lost. Sultan Holdings Pty Ltd v John Fuglsang Developments Pty Ltd and Ors [2017] 27 Tas R 407 at 475 is an example of an appeal where such order was made. In that case, citing a passage in the joint judgment of Finkelstein and Gordon JJ at [5] in Bowen Investment Pty Ltd v Tabcorp Holdings Ltd No. 2 [2008] FCAFC 107, Porter J said at [221]-[222] "Ultimately, fairness dictates how the discretion as to costs should be exercised, and if an issue by issue approach produces a result that is fairer than giving the successful party the whole of the costs notwithstanding the failure of particular issues, then the issue by issue approach should be adopted".
3. In Leppington Pastoral v Chief Commissioner of State Revenue [2017] NSWSC 68 the relevant guiding principles are canvassed:

"The most recent statement from the Court of Appeal relevant to this question, of which I am aware, is what was said in Bartlett v Australia & New Zealand Banking Group Ltd at [96]. I consider I should continue to follow what I said at [49] of Priestley v Priestley (No 2), namely, that the relevant event for the purposes of the rule is primarily determined by reference to whether or not the plaintiff has obtained a judgment in its favour, even if the defendant has defeated some claims and has succeeded on others, or has succeeded on some issues.

On the other hand, I maintain my view there is considerable force in what was said by Finkelstein and Gordon JJ in Bowen Investments v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107 (at [5]), that if an issue-by-issue approach or, I might add, a claim-by-claim approach, produces a result that is fairer than giving a successful party all of his or her costs, notwithstanding his or her failure on particular issues (and I would add claims), then an issue-by-issue (or claim-by-claim) approach should be adopted. The ultimate question is not where one starts but where one finishes, in assessing the fairness and justness of the costs order.

That having been said, it is clearly established by authority that where there are multiple issues, the court generally does not attempt to differentiate between issues on which a party was successful and those on which it failed, and that unless a particular group of issues is clearly dominant or separable, it would ordinarily be appropriate to award costs to the successful party without attempting to differentiate between issues on which it was successful or on which it failed (Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 at [38])." [my emphasis]

1. Porter J in Fuglsang (above) identifies considerations which are relevant to a determination of whether it is fairer to adopt an issue-by-issue approach. These include case management principles, the significance of the issue raised in proportion to the proceeding as a whole, and whether its enquiry had any relative strength or merit. The lesser the strength of the point raised and the greater the proportion it bears to the whole case, the more likely it is that the successful party may be deprived of costs. This engages the question of whether it was unreasonable to raise the particular; issue.

1. The second respondent's submissions with respect to those considerations are in summary as follows:

(a) In respect of Ground 1, the Court observed in its decision "..at [32] that the issue of an offset 'was squarely engaged in the hearing and the evidence supported the conclusion that an offset could ameliorate the biodiversity impacts of the development." It was unreasonable to contend otherwise.

(b) Furthermore "It should have been clear to the Appellant, as stated in the Decision at [36], that 'conditions are consequences of that which is applied for' and that 'the condition of a development application does not transform the development into something different." It was unreasonable for the Appellant to contend otherwise.

(c) In relation to ground 1(b), as noted by the Court at [41] 'the facts do not support the appellant's argument ... there is not continuing uncertainty around those matters, but rather 'ongoing flexibility in relation to...implementation' achieved by way of a delegated authority in relation to that matter."'

(d) "...substantial time and effort was incurred as a result of the Appellant pursuing ground 1 that had no merit and was factually unsupported. The Appellant's Written 'Outline' of Contentions dated 9 February 2021 were substantial and in relation to ground 1, spanning approximately 10 pages which represents close to 30% of the contentions that addressed the grounds of appeal. The Appellant's submissions raised significant matters that required analysis of relevant case authority". The issues raised by this ground required "comprehensive written submissions". Those submissions ran to 14 pages in length, 10 of which related to this ground. Its further submissions ran to 10 pages, 6 of which related to this ground.

(e) Ground 3 asserted the Tribunal erred in finding that clause E10.7.1 P1(c)(v) of the applicable Planning Scheme was ultra vires. It was unnecessary to decide this ground, but it nevertheless required comprehensive written submissions "over approximately three pages and oral submissions representing approximately 25% of the Appellant's submissions based on the transcript"

(f) Ground 2 concerned the interpretation of the term 'site' and was the only ground upheld by the Court. This was a discrete and severable issue and in the context of the overall proceeding as a whole was a relatively minor point.

(g) Ground 4 "was...a discrete and severable issue in the context of the appeal". It was without merit and disclosed no error of law, and was "unreasonably pursued". As such "it was unreasonable for the Appellant to file substantial submissions (approximately five pages) in relation to ground 4 and further response submissions (approximately three pages) that required effort in the form of consideration and rebuttal from the Second Respondent".

1. I approach the issue of costs having regard to the considerations identified by Porter J, above at [9].
2. In respect of those matters the decision of the Court is instructive, and in turn, determinative.
3. As a general proposition, there is a relevant difference between unsuccessful grounds and wholly unmeritorious grounds. An approach focusing only on the result of a court's consideration of a ground will not be enough to establish the proposition that a ground was unreasonably pursued, and sustain a conclusion that fairness requires an unsuccessful party to be compensated for its costs in respect of its resistance to it. A deeper analysis is required.
4. In this case it can be seen by reference to the Court's reasons that even in respect of those grounds upon which the appellant was unsuccessful a careful consideration of the appellant's arguments was required before it could be concluded that they should be rejected. It is to be acknowledged that ground 4 was a relatively weak ground, in the sense that it advanced the least arguable proposition of the four which were put, but it was not unreasonably put, nor so lacking in merit as to require the conclusion the second respondent urges. It should be repeated for completeness that Ground 3 was in the "unnecessary to decide" category because of the Court's conclusion in respect of another ground. It was reasonable to articulate that ground against the possibility Ground 2 was not successful. Viewed as a standalone ground it was appropriately put before this Court relating as it did to a core aspect of the second respondent's case before the Tribunal, and the Tribunal's acceptance of it.
5. The appellant's written submissions might be considered voluminous, but are better viewed as thorough. Their detail was instructive and properly signposted for the second respondent all the arguments it needed to meet.
6. The grounds of appeal were neither unmeritorious in the sense that they were unarguable, nor unreasonable, in the sense that they should not have been pursued and would not have been agitated had careful legal consideration been applied to them by the appellant. The position here is not finely balanced, but weighted in favour of the conclusion that the unsuccessful grounds were reasonably open to agitation. That being so the appellant had a duty to its client to put them.
7. The situation in this case is not the same as that which was identified in Fuglsang wherein certain grounds were identified as having been unreasonably pursued.
8. The appellant's conduct of its case, in a procedural and substantive sense was wholly responsible and proper. Its prosecution of the unsuccessful grounds does not amount to conduct disentitling it to the order it seeks upon its succeeding in the appeal. That being so the second respondent's engagement in meeting those grounds cannot be the subject of complaint nor a basis for finding that it is unfair if they are not compensated for the costs of doing so.
9. I reject the second respondent's submissions.

The Appeal Costs Fund Act

1. Section 8 of the Appeal Costs Fund Act is in these terms.

"Grant of indemnity certificate to respondent in certain cases

(ii) a board or other body or person from whose decision there is an appeal to a superior court or who may state a case for the opinion or determination of a superior court on a question of law or reserve any question of law in the form of a special case for the opinion of a superior court; or

(b) to the Full Court of the Supreme Court from a decision of that Court held before a single judge or of a judge in chambers; or

(c) to the High Court of Australia from a decision of the Supreme Court -

succeeds, the Supreme Court may, on application made in that behalf, grant to the respondent to the appeal or to one or more of several respondents to the appeal an indemnity certificate in respect of the appeal."

1. In simple terms, that Act enshrines a principle whereby an unsuccessful litigant is entitled to the benefit (protection) of a certificate in circumstances where a decision results from a circumstance not of its making, in the sense that it does not flow from its conduct of litigation, but rather from something done or not done by the decision-maker. The erroneous application of legal principle for which a party cannot be held responsible is an example.
2. This is not such an example. There is a difference in this case. That difference is that the approach taken by the Tribunal, and in respect of which the appellant was successful on appeal, was an approach invited by the second respondent. Its challenge to the application of the definition of "site" appearing in the planning scheme, was made on the ground that the part within which it appeared was ultra vires. In order to avoid the effect of that submission, which the Tribunal can be taken to have accepted, the Tribunal adopted an approach which avoided the issue. In that sense, the approach taken by the Tribunal was at the very least, the indirect result of the second respondents conduct of the appeal in that jurisdiction. If it is harsh to say that the second respondent's submissions led the Tribunal into error, it is not altogether inaccurate insofar as the course taken was in response to it.
3. In my view it would be contrary to the principle underpinning the operation of the Appeal Costs Fund Act to grant the second respondent a certificate in those circumstances. Such course would involve the engagement of the Act in circumstances which do not fall within the scope of its intended operation. On that basis I would refuse the second respondent's application for a certificate under the Act.

1. I would make an order that the second respondent pay the appellant's costs of and incidental to the appeal, to be taxed unless agreed. I would decline the second respondent's application for a certificate under the Appeal Costs Fund Act.

(6) The Full Court may make any order as to the whole or any part of the costs of an appeal as appears to the Full Court to be just, but, unless some other order is made, the costs of an appeal follow the event.

(6A) On or after delivering judgment in an appeal which they have heard, one or more judges of the Full Court, despite the absence of any other judge who also heard that appeal, may determine -

(a) an uncontested application for costs in relation to that appeal; and

(b) an application for an indemnity certificate under the Appeal Costs Fund Act 1968 in relation to that appeal.

(6B) In relation to an appeal, a judge may do either or both of the following:

(a) make a consent order on any matter other than an order agreeing to allow or uphold the appeal;

(b) grant an indemnity certificate under the Appeal Costs Fund Act 1968 .