Satellite & Wireless Pty Ltd v Gold Coast City Council

REASONS FOR JUDGMENT 1 These proceedings were the subject of orders made on 8 March 2013 supported by reasons for judgment published that day: Satellite & Wireless Pty Ltd v Gold Coast City Council [2013] FCA 193. 2 The respondent appealed from the primary decision, and judgment was given in the appeal on 1 May 2014: Gold Coast City Council v Satellite & Wireless Pty Ltd [2014] FCAFC 51. 3 The only outstanding question is the disposition of the costs of the principal proceeding. 4 In the principal proceeding the applicant was successful (as it was on appeal). The applicant contends that the respondent should pay the applicant's costs of and incidental to the proceeding on an indemnity basis rather than on the standard basis in the exercise of the Court's discretion conferred under s 43(3)(g) of the Federal Court of Australia Act 1976 (Cth). The applicant contends that the issues raised by the respondent in the principal proceeding were without prospects of success and should not have been agitated. The applicant also contends that the unmeritorious nature of the defences relied upon by the respondent are such that the Court ought to exercise the discretion to award costs on an indemnity basis. 5 As to the issues, the respondent says that the issue of service raised by the respondent was without prospects of success and ought not to have been agitated in the proceeding. Doing so, it is said, unnecessarily protracted the proceedings. 6 The applicant also contends that the respondent's claim that the applicant's proposed low impact facility would "interfere with" the respondent's Water Tower was "unsubstantiated and not supported by any evidence". The respondent says that it was: … unsatisfactory for the Respondent to merely deny the Applicant access to the Water Tower on the basis that it alleged or suspected interference would occur, particularly in circumstances where full details had been provided by the Applicant as to the nature of the facility to be installed as well as an assurance that there would be no interference to the Water Tower whatsoever and an undertaking in accordance with the relevant requirement under Clause 42 of Schedule 3 to the Telecommunications Act (Cth) 1997 not to cause any damage to the property and to compensate the owner in the event that any damage is caused. 7 The applicant also says that the respondent's actions in denying the applicant access to the Water Tower on the footing of an objection which was not valid and on the basis of a claim that the LAAN had not been properly served, left the applicant with no alternative but to commence the proceedings. The applicant says that it was wholly successful in obtaining the orders sought in the application and that the respondent ought to pay the applicant's costs of the proceedings from 20 March 2012 to the date of judgment on an indemnity basis. The significance of 20 March 2012 is that that was the date upon which the applicant notified the respondent that it intended to exercise its statutory entitlement to install its low impact facility. 8 Alternatively, the applicant says that it ought to have its costs on an indemnity basis from 27 March 2012 being the date on which the respondent notified the applicant that it refused to allow the applicant to install its low impact facility. 9 I accept that in the principal proceeding the entire question relating to service was unmeritorious. It became necessary to examine in considerable detail all of the email and related exchanges so as to demonstrate in the exposed reasons the lack of merits in that contention. Nevertheless, an issue of substance was raised by the respondent which concerned the proper construction to be attributed to the relevant provisions of Div 3 of Pt 1 of the Telecommunications Act 1997 (Cth) and the construction to be attributed to aspects of Sch 3. Those matters are addressed at [109] to [139] of the principal judgment. 10 Irrespective of the merits in relation to the service issues, the questions arising under the Telecommunications Act 1997 (Cth) would necessarily have remained to be resolved. 11 The applicant was successful in the proceeding and ought to have its costs. However, those costs ought to be awarded on the usual basis. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.