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[2026] ACTSC 132
Supreme Court of the ACT
2026-05-08
Mossop J
Original judgment source is linked above.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: Susa v ACT Planning and Land Authority (No 2) Citation: [2026] ACTSC 132 Hearing Date: On the papers Decision Date: 8 May 2026 Before: Mossop J Decision: (1) As between the plaintiffs and the first defendant, the first defendant is to pay 50% of the plaintiffs’ costs of the proceedings against it. (2) As between the plaintiffs and the second defendant, there is no order as to the costs of the proceedings. Catchwords: PRACTICE AND PROCEDURE – COSTS – Whether Hardiman principle applicable – where plaintiffs attained relief – where bulk of proceedings dealt with grounds where the plaintiffs were not successful – where active defendants are public authorities – where second defendant’s conduct confined and consistent with assisting the court to properly determine the plaintiffs’ claim – held unnecessary to explore application of Hardiman principle – partial costs order between plaintiff and first defendant – no costs order between plaintiff and second defendant Legislation Cited: Heritage Act 2004 (ACT) Cases Cited: MetLife Insurance Ltd v Australian Financial Complaints Authority (No 3) [2022] FCA 849; 411 ALR 163 Susa v ACT Planning and Land Authority [2025] ACTSC 558; 399 FLR 469 The Queen v The Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; 144 CLR 13 TXU Electricity Ltd v The Office of the Regulator-General [2001] VSC 4; 3 VR 93 Parties: John Susa (First Plaintiff) Sonia Susa (Second Plaintiff) Australian Capital Territory Planning and Land Authority (First Defendant) ACT Heritage Council (Second Defendant) Derek James Taprell (Third Defendant) Judith Dorothy Clarke (Fourth Defendant) Representation: Counsel P Walker SC with J Bird (Plaintiffs) N Sinnathurai (First Defendant) M Hassall (Second Defendant) Solicitors MV Law (Plaintiffs) ACT Government Solicitor (First and Second Defendants) File Number: SC 373 of 2024 MOSSOP J: Introduction
Submissions
The plaintiffs submitted that the court should order ACTPLA and the Heritage Council to pay their costs of the proceedings. They submitted that they were successful in obtaining the relief which they sought. They said that this was the second occasion on which they have had to come to court in relation to invalid decisions of ACTPLA and the Heritage Council in relation to the same development in an important heritage precinct. They characterised the breach of the relevant mandatory requirement of the Heritage Guidelines as “blatant” and something which should have been “obvious to their legal advisors”. They submitted that their lack of success on their secondary claim relating to what constituted “datum ground level” should not affect their entitlement to costs.
ACTPLA submitted that there should be no order as to costs for two reasons. First, a party that abides by what is referred to as the Hardiman principle (The Queen v The Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; 144 CLR 13 at 35-36) should not be ordered to pay costs, even if the decision under review has been set aside. Second, a larger portion of the argument and evidence was focused upon the plaintiffs’ unsuccessful datum ground level contentions.
The Heritage Council submitted that there was precedent for the proposition that a decision maker which limits its role in proceedings in accordance with the Hardiman principle will not be ordered to pay the costs of a successful applicant. That is particularly so in cases where there is no contradictor or intervener.
Consideration and decision
The court has a broad discretion in relation to the award of costs which must be exercised judicially. Ordinarily, costs will follow the event, that is, the successful litigant will ordinarily receive its costs in the absence of circumstances justifying some other order. Costs are not awarded in order to punish an unsuccessful party but instead to compensate the successful party for the expense incurred. Generally, the “event” refers to the overall outcome of the litigation. While that is usually the case, it is open, in an appropriate case, for the court to apportion costs between issues on which a party was successful or unsuccessful.
In the present case, the applicants for development approval (named as the third and fourth defendants) were at an early stage granted leave to file an amended notice of appearance submitting to any order save as to costs and did not subsequently participate in the proceedings. That meant that unless some role was played by ACTPLA or the Heritage Council, there would be no contradictor. Such a circumstance would create obvious difficulties for the court in determining the various aspects of the proceedings, which involved a specialised area of government administration.
As the judgment of the court made clear, the decision of the Heritage Council involved an error of law, and that error of law carried through to the decision of ACTPLA which was set aside. The issue in relation to the Heritage Council turned at all times on a relatively confined question of statutory interpretation. On that issue, counsel for the Heritage Council played a limited role in the proceedings, taking care to explain to the court the interpretation of the Heritage Act 2004 (ACT) that had been adopted and which resulted in the recommendations that were made to ACTPLA. He thereby assisted the court to understand the basis upon which the Heritage Council had acted and provided appropriate assistance to the court so as to allow the arguments advanced on behalf of the plaintiffs to be properly assessed. Having regard to the requirement that the court properly understand and consider the plaintiffs’ arguments about statutory interpretation and the approach adopted by the Heritage Council in making the recommendations that it did, nothing done by counsel for the Heritage Council extended the case beyond what would have been required even if it had entered a submitting appearance.
So far as ACTPLA was concerned, while counsel for ACTPLA professed to be adopting an approach consistent with the decision in Hardiman, in fact the approach taken was more consistent with that of an adversarial party. Counsel took very detailed objections to the evidence led by the plaintiffs, cross-examined both witnesses called by the plaintiffs, and made detailed opening and closing submissions. As it turned out, many of the matters upon which counsel for ACTPLA took an active part were not required to be determined because the issue in relation to which ACTPLA was the sole contradictor, that of datum ground level, was ultimately determined by a relatively straightforward exercise in statutory interpretation. On that issue, ACTPLA was successful and the plaintiffs were unsuccessful.
In this case, it is not necessary to explore the application of the Hardiman principle in the case of administrative bodies that are in no relevant respect “substitute courts”, or where there is no other available contradictor to the plaintiffs’ claims: see the discussions in TXU Electricity Ltd v The Office of the Regulator-General [2001] VSC 4; 3 VR 93 at [27]-[46] and MetLife Insurance Ltd v Australian Financial Complaints Authority (No 3) [2022] FCA 849; 411 ALR 163 at [12].
In my view, the case is one in which it is appropriate that the position in relation to costs differ as between the two active defendants.
The approach taken by the Heritage Council was very confined and consistent with assisting the court to properly determine the plaintiffs’ claim. It is appropriate that there be no order as to costs as between the plaintiffs and the Heritage Council.
As pointed out, the approach of ACTPLA went beyond merely assisting the court in a specialist area of law. Although the plaintiffs ultimately obtained relief against ACTPLA, they were unsuccessful on one of the two discrete issues in the case, namely their challenge to the decision based on datum ground level. The bulk of the documentary and oral evidence related to that issue and hence the bulk of the costs incurred in preparation for and hearing of the case were incurred on a discrete issue upon which the plaintiffs were not successful. It is a case in which, while it is appropriate to make a costs order against ACTPLA, it is also appropriate to take into account the lack of success of the plaintiffs on the more substantial issue. ACTPLA will be ordered to pay 50% of the plaintiffs’ costs of the proceedings against it.
Orders
I certify that the preceding thirteen [13] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date:
Susa
ACT Planning and Land Authority (No 2)