SUPREME COURT OF NORFOLK ISLAND

Grube v Minister for Lands and the Environment (No 2) [2005] NFSC 5

PRACTICE AND PROCEDURE – costs – whether costs should follow event – whether litigation in public interest – whether history and conduct of dispute warrants no order as to costs – whether appellants should pay respondents’ costs on indemnity basis – whether appellants’ solicitor should repay any costs appellants are ordered to pay to respondents

Hughes v Western Australian Cricket Association (Inc) (1986) ATPR ¶40-748

Oshlack v Richmond River Council (1998) 193 CLR 72

Ritter v Godfrey [1920] 2 KB 47

Williams v Minister for Environment & Heritage [2004] FCAFC 58

RAYMOND DAVID GRUBE, KIM VANESSA PARTRIDGE, ROBERT TERRY RYAN, DAVID KENDALL PITCHER AND MICHELLE JAN SAAL PITCHER v MINISTER FOR LANDS AND THE ENVIRONMENT AND ISLAND INDUSTRIES PTY LIMITED

SC 6 OF 2005

WEINBERG CJ

MELBOURNE

27 SEPTEMBER 2005

ON APPEAL FROM THE ADMINISTRATIVE REVIEW TRIBUNAL

THE COURT ORDERS THAT:

1.         The appellants pay fifty per cent (50%) of the costs of each of the first and second respondents, of and incidental to the appeal.

2.         Such costs be taxed on a party and party basis, in default of agreement.

ON APPEAL FROM THE ADMINISTRATIVE REVIEW TRIBUNAL

REASONS FOR JUDGMENT

1                     On 2 September 2005, I delivered judgment in this matter.  I ordered that the appeal be dismissed, and that the parties file and serve written submissions regarding the issue of costs.  Those submissions have been filed.  I am now in a position to deal with that issue.

2                     The respondents submit that, the appeal having failed, costs should follow the event.  The first respondent submits, in addition, that the appellants should be ordered to pay those costs on an indemnity basis.  He does so on the basis that the appeal was always destined to fail, and also on the basis that he was put to unnecessary work, and expense, by reason of what he describes as the “prolix arguments” advanced on behalf of the appellants.  The second respondent invites the Court to order that the appellants’ solicitor re-pay to the appellants any costs that the appellants may be ordered to pay to the first and second respondents.  That submission is based upon the contention that the proceedings were brought substantially without merit.

3                     The appellants, in response, submit that there should be no order as to costs.  They say that the Court should depart from the ordinary course, that costs follow the event, and invoke the following reasons:

·                    the appeal could fairly be regarded as “public interest litigation”, of the type referred to in Oshlack v Richmond River Council (1998) 193 CLR 72;

·                    the Administration and the second respondent engaged in unconscionable conduct in allowing what might ultimately become a nuisance to develop, and thereby forced the appellants to follow the lengthy and difficult path of litigation that ensued;

·                    over the history of the dispute the appellants succeeded in gaining significant modification to the original proposals; and

·                    the fact that the respondents contended, unsuccessfully, on the appeal that a number of the grounds relied upon by the appellants did not give rise to a question or questions of law.  This necessitated extensive legal argument, and the filing of lengthy written submissions.

4                     The Court’s power to award costs is governed by s 6 of the Supreme Court Act 1960  (NI).  That section confers a wide discretion upon the Court, though that discretion must of course be exercised judicially.  In the absence of special circumstances, the general course is that costs follow the event:  Hughes v Western Australian Cricket Association (Inc) (1986) ATPR ¶40-748 at 48,136 and Ritter v Godfrey [1920] 2 KB 47 at 52-3.  If, however, a particular proceeding can be described as “public interest litigation” or perhaps has resulted in the determination of questions that it was in the public interest to have determined, the Court may depart from that general course. 

5                     I do not think that the present case can properly be regarded as an instance of “public interest litigation”.  Nor do I think that the appellants could properly characterise the proceedings as having been brought in the public interest.  In the language of the Full Court of the Federal Court in Williams v Minister for Environment & Heritage [2004] FCAFC 58 at [23], it cannot be said that the appellants have “brought this appeal entirely without self-interest”. 

6                     Although the appellants have criticised the conduct of the Administration and the second respondent in their written submissions regarding costs, I do not think it appropriate to have regard to these submissions.  I do not propose to embark upon a consideration of whether the proposed rock-crushing activities would amount to a “nuisance”, as alleged, in breach of particular statutory provisions.  Nor do I propose to examine the history of the dispute between the parties, which goes back a number of years.  It would not be realistic, in any practical sense, to seek to attribute responsibility for the conduct of various aspects of the dispute in years gone by.  It would make no sense to conduct a “mini-trial” into the many allegations made by the appellants in their submissions on costs, when the primary question to be considered is which party should bear the costs of the particular proceeding before me.

7                     On the other hand, there is some force in the appellants’ submission that the proceedings were protracted to some degree by the respondents’ argument that none of their grounds of appeal raised any question of law.  That submission was the subject of extensive argument, and necessitated a great deal of additional work on the part of counsel, and of the Court.  It failed, and the appellants should not be visited with the extra costs incurred by reason of the respondents’ reliance upon it. 

8                     With regard to the respondents’ various claims, there is no foundation, in my view, for any order that costs be assessed on an indemnity basis.  Nor is there any justification for an order that the appellants’ solicitor be required to meet some or all of any costs incurred. 

9                     In my view, the appellants should pay fifty per cent (50%) of the costs of each of the first and second respondents, such costs to be paid on a party and party basis.  These costs will, of course, be taxed, in default of agreement.

Associate:        

Dated:              27 September 2005