Administrator of Norfolk Island v Jope (No. 2)

[2006] NFSC 10

SUPREME COURT OF NORFOLK ISLAND

Administrator of Norfolk Island v Jope (No. 2) [2006] NFSC 10

PRACTICE AND PROCEDURE – costs – whether costs should be apportioned when appellant successful upon only some grounds of appeal – whether each party should bear their own costs.

Supreme Court Act 1960 (NI) s 6

Administration of Norfolk Island v Walsh [2005] NFSC 6 referred to
Administrator of Norfolk Island v Jope [2006] NFSC 9 referred to
Cretazzo v Lombardi (1975) 13 SASR 4 cited
Knight v Clifton [1971] 2 All ER 378 cited
Lactos Fresh Pty Ltd v Finishing Services Pty Ltd (No 2) [2006] FCA 748 cited
Latoudis v Casey (1990) 170 CLR 534 cited
Trade Practices Commission v Nicholas Enterprises Pty Ltd (1979) 28 ALR 201 cited

ADMINISTRATOR OF NORFOLK ISLAND v TERENCE JOPE (NO. 2)
SC 9 OF 2005

WEINBERG CJ
13 OCTOBER 2006
MELBOURNE

IN THE SUPREME COURT
OF NORFOLK ISLAND	SC 9 OF 2005

BETWEEN:	ADMINISTRATOR OF NORFOLK ISLAND Appellant
AND:	TERENCE JOPE Respondent

JUDGE:	WEINBERG J
DATE OF ORDER:	13 OCTOBER 2006
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.In this proceeding, each party bear their own costs. 

IN THE SUPREME COURT
OF NORFOLK ISLAND	SC 9 OF 2005

BETWEEN:	ADMINISTRATOR OF NORFOLK ISLAND Appellant
AND:	TERENCE JOPE Respondent

JUDGE:	WEINBERG J
DATE:	13 OCTOBER 2006
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. On 27 September 2006 I delivered judgment in this matter: Administrator of Norfolk Island v Jope [2006] NFSC 9. The case concerned a decision of the Administrative Review Tribunal purporting to set aside a decision of the Administrator made on 13 September 2004 that an “in-principle approval” for a residential subdivision, granted by his office on 27 July 2001, had lapsed. I allowed the Administrator’s appeal in part, and ordered that the matter be remitted to the Administrative Review Tribunal so that adequate reasons for its decision could be provided. I also ordered that the parties file written submissions in relation to the issue of costs. That has now been done.

2. There is no doubt that the Court has power to award costs in its discretion in all matters brought before it:  Supreme Court Act 1960 (NI) s 6.  The discretion is largely unfettered except that it must be exercised judicially: Knight v Clifton [1971] 2 All ER 378; Cretazzo v Lombardi (1975) 13 SASR 4; Trade Practices Commission v Nicholas Enterprises Pty Ltd (1979) 28 ALR 201; and Latoudis v Casey (1990) 170 CLR 534 at 557.

3. Costs follow the event unless the court, for good cause, orders otherwise.  For example, it may be that the costs of the matter have been increased significantly by one or more issues on which the successful party failed.  In such a case, the successful party may not only be deprived of the costs associated with those issues, but also ordered to pay the other side’s costs in relation to them:  Lactos Fresh Pty Ltd v Finishing Services Pty Ltd (No 2) [2006] FCA 748.

4. The appellant’s notice of appeal in this matter originally contained four grounds.  Ground one concerned the constitution of the Administrative Review Tribunal.  That ground was abandoned after I delivered a judgment in Administration of Norfolk Island v Walsh [2005] NFSC 6. Ground two concerned the jurisdiction of the Tribunal. That ground was decided in favour of the respondent, albeit on somewhat different reasons to those adopted by the Tribunal in the first instance. Ground three concerned the adequacy of the Tribunal’s reasons. That ground was decided in favour of the appellant. Ground four, which concerned the legal test for “substantial progress” did not arise for determination in light of the Court’s decision on ground three.

5. The appellant contends that in successfully challenging the statement of reasons issued by the Tribunal he has been substantially successful in these proceedings.  He submits that the mere fact that he failed on a particular issue along the way did not provide a basis for depriving him of some or all of his costs.  He refers, in that regard, to the following observations of Jacobs J in Critazzo v Lombardi (at 16):

   “But trials occur daily in which the party, who in the end is wholly or substantially successful, nevertheless fails along the way on particular issues of fact or law.  The ultimate ends of justice may not be served if a party is dissuaded by the risk of costs from canvassing all issues, however doubtful, which might be material to the decision of the case.  There are, of course, many factors affecting the exercise of the discretion as to costs in each case, including in particular, the severability of the issues, and no two cases are alike.  I wish merely to lend no encouragement to any suggestion that a party against whom the judgment goes ought nevertheless to anticipate a favourable exercise of the judicial discretion as to costs in respect of issues upon which he may have succeeded, based merely on his success in those particular issues.”

6. The appellant notes that in Trade Practices Commission v Nicholas Enterprises Pty Ltd Fisher J regarded the discretion to apportion costs as one to be exercised only in the most exceptional circumstances.  He submits that there is no reason why, in the present case, the ordinary rule as to costs should not apply.  He contends that the respondent should be ordered to pay the costs of the appeal. 

7. The respondent notes that the appellant was unsuccessful in relation to ground two, and that it had been conceded by the respondent that ground three was made out.  Moreover, the appellant had unsuccessfully sought to persuade me that I should determine the matter on the evidence given before the Tribunal, whereas the respondent had successfully urged that the matter be remitted to enable the Tribunal to provide adequate reasons for its decision. 

8. The respondent is a builder who claims to have no knowledge of the law.  He represented himself before the Tribunal.  In the written submissions filed on his behalf in this proceeding, he notes that the appellant has, at all stages, been legally represented.  He further submits that it should have been obvious to counsel for the appellant that the Tribunal’s reasons were manifestly inadequate, and contends that the Tribunal should have been asked, at the time it delivered its reasons, to elaborate upon them. 

9. The respondent invites me to apportion costs in favour of the appellant on ground three, and in favour of the respondent “on the two grounds on which he was successful”.  In fact, of course, the respondent was only successful on ground two, at least so far as this proceeding was concerned.  Alternatively, the respondent submits that each party should bear their own costs of this proceeding.

10. In my view each party has had a measure of success in this proceeding.  The respondent acted properly, and responsibly, in conceding that ground three was made out.  The appellant failed on the only contentious ground that was actually determined, namely that which challenged the jurisdiction of the Tribunal.  Although the appellant ultimately succeeded on the appeal, he did so only in part, and only in a way that fell well short of his objectives.  In these circumstances, I consider that the appropriate order is that each party bear their own costs. 

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Weinberg.

Associate:

Dated:       13 October 2006

Counsel for the Appellant:	Mr W Richards
Solicitor for the Appellant:	Crown Counsel of Norfolk Island
Counsel for the Respondent:	Mr M Hehir
Solicitor for the Respondent:	Hehir & Co
Date of Submissions:	11 October 2006
Date of Judgment:	13 October 2006