Anangu Pitjantjatjara Yankunytjatjara v Ombudsman [No 2]

[2019] SASC 173

SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

ANANGU PITJANTJATJARA YANKUNYTJATJARA v OMBUDSMAN & ANOR [NO 2]

[2019] SASC 173

Judgment of The Honourable Justice Hinton

4 October 2019

PROCEDURE - COSTS - GENERAL RULE - COSTS FOLLOW THE EVENT

Applications for costs.

On 13 September 2019 this Court dismissed the plaintiff’s application for judicial review. The first and second defendants applied for their costs of and occasioned by the plaintiff’s application.

The plaintiff conceded that as its application for judicial review was wholly unsuccessful, it should be subject to an adverse costs order. Nevertheless, the plaintiff submitted that as the interests of the first and second defendants overlapped, this Court should order that the plaintiff pay only one set of costs, 75% of which should be paid to the first defendant and 25% be paid to the second defendant.

Held, allowing the defendants’ applications for costs; the plaintiff is to pay the costs of the first and second defendants on a party/party basis, those costs to be taxed if not agreed.

Acquista Investments Pty Ltd v The Urban Renewal Authority (No 2) [2015] SASCFC 117; Anangu Pitjantjatjara Yankunytjatjara v Ombudsman [2019] SASC 162; McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504; Northern Territory v Sangare (2019) 93 ALJR 959, referred to.

ANANGU PITJANTJATJARA YANKUNYTJATJARA v OMBUDSMAN & ANOR [NO 2]
[2019] SASC 173

Costs

HINTON J:

1. On 13 September 2019 I dismissed the plaintiff’s application for judicial review.[1] In consequence the first and second defendants applied for their costs. The plaintiff acknowledges that as it was wholly unsuccessful in its application it is appropriate that it should be subject to an adverse costs order. The plaintiff contends, however, that the interests of the defendants overlapped as did the arguments they made. In these circumstances, the plaintiff further contends that it should not have to pay two sets of costs. Rather, this Court should order that it pay only one set of costs, 75% of which should be paid to the first defendant and the balance to the second defendant.

   [1]    Anangu Pitjantjatjara Yankunytjatjara v Ombudsman [2019] SASC 162.

2. In my view the plaintiff should pay the costs of both defendants on a party/party basis, those costs to be taxed if not agreed. My reasons follow.

3. Recently, in Northern Territory v Sangare the High Court observed:[2]

   It is well established that the power to award costs is a discretionary power, but that it is a power that must be exercised judicially, by reference only to considerations relevant to its exercise and upon facts connected with or leading up to the litigation. While the width of the discretion “cannot be narrowed by a legal rule devised by the court to control its exercise”, the formulation of principles according to which the discretion should be exercised does not “constitute a fetter upon the discretion not intended by the legislature”. Rather, the formulation of principles to guide the exercise of the discretion avoids arbitrariness and serves the need for consistency that is an essential aspect of the exercise of judicial power.

   A guiding principle by reference to which the discretion is to be exercised – indeed, “one of the most, if not the most, important” principle – is that the successful party is generally entitled to his or her costs by way of indemnity against the expense of litigation that should not, in justice, have been visited upon that party. The application of that principle may be modified or displaced where there is conduct on the part of the successful party in relation to the conduct of the litigation that would justify a different outcome. For example, a successful defendant may be refused its costs on the ground that its conduct induced the plaintiff to believe that he or she had a good cause of action. But in the present case, there was nothing of this kind in the conduct of the appellant in relation to the litigation that might have weighed against the exercise of the discretion in its favour. There was no suggestion of any conduct on the part of the appellant, whether by unreasonable delay or a want of the cooperation required of litigants to ensure the “just resolution of the real issues in civil proceedings with minimum delay and expense”, that might have been taken into account to justify refusing the appellant an order for its costs.

   [footnotes omitted]

   [2] (2019) 93 ALJR 959 at [24]-[25] (The Court).

4. In my view these observations apply equally in relation to s 40 of the Supreme Court Act 1935 (SA) and Ch 12 of the Supreme Court Civil Rules 2006 (SA) (SCCR). The principle contained in the rules invoked by the plaintiff’s submissions on the question of costs is to be found in rule 269 SCCR. That rule provides:

   269—Over-representation of parties with common interest

   If two or more parties have identical or similar interests but are separately represented and, in the Court’s opinion, unnecessarily so, the Court may exercise either or both of the following powers—

   (a)the Court may order that costs to which the parties are entitled be determined on a basis that would be appropriate if they had common legal representation;

   (b)the Court may order the over-represented parties to compensate other parties to the action for additional costs incurred by them as a result of the over-representation.

5. In Acquista Investments Pty Ltd v The Urban Renewal Authority (No 2) Vanstone and Lovell JJ said in regard to rule 269:[3]

   We turn to Rule 269. A court will not normally allow two sets of costs to defendants where there is no possible conflict of interest between them in the presentation of their cases. However each case must be decided on its own facts. It has been accepted that even where parties are united in their opposition to a plaintiff their relationship to each other might be such that they would be acting reasonably in remaining at arm’s length during the general course of litigation.

   [footnote omitted]

   [3] [2015] SASCFC 117 at [18].

6. And in McGovern v Ku-ring-gai Council (McGovern) Basten JA said:[4]

   There is a separate issue, however, as to whether the appellants should pay the costs of both respondents … There is no doubt that both parties were properly joined in the proceedings; however, they had a community of interest on the primary point, which was maintaining the validity of the second consent. As noted above, comments in the joint judgment in Oshlack raise a question as to whether it is appropriate for the Council to be an active opponent of proceedings, where it is the consent authority and may need to reconsider a decision under challenge. A possible result is that, if it plays an inappropriate role, even on the successful side of the record, it may not obtain its costs of the proceedings. …

   [4] (2008) 72 NSWLR 504 at [226].

7. Rule 269 may be regarded as derived from the same basal principle as McGovern. It may be accepted that McGovern does not have the status of a binding rule, but, like rule 269, Basten JA articulated a principle that guides the exercise of the costs discretion.

8. It may well be that the point now raised by the plaintiff should have been raised in advance of, or at the time of the substantive hearing,[5] but that does not relieve entirely those acting for the defendants of their responsibility to ensure that matters are dealt with expeditiously and with a view to the minimisation of cost.[6] In my view this Court is entitled to expect that practitioners will be aware of rule 269 and advise accordingly.

   [5]    Acquista Investments Pty Ltd v The Urban Renewal Authority (No 2) [2015] SASCFC 117 at [22] (Vanstone and Lovell JJ).

   [6]    Supreme Court Civil Rules 2006 (SA), r 3.

9. In the present case, there can be no doubt that the first and second defendants were properly joined as parties to the application. No one has suggested that this was a matter where it would have been appropriate for the first defendant to abide the event.[7] Whilst the defendants had a common interest in the maintenance of the decisions made by the Ombudsman, this is one of those cases where it was appropriate for the parties to remain at arm’s length. As the arbiter of an external review, it was important that the Ombudsman’s independence and impartiality be maintained, particularly if, as was the case, a possible outcome was that he undertake the external reviews afresh. That said, for counsel for the first and second defendants to have conferred to minimise if not avoid overlap would not undermine the Ombudsman’s independence and impartiality. Ultimately, in oral argument there was no overlap, or no significant overlap, that contributed to any increase in the cost of the hearing. In terms of the preparatory work undertaken, it may be said that those representing the first and second defendants could not leave it to the other to protect their client’s interests, but that is a claim that may always be made. I accept that until the hearing of the application, ground 2, in which the second defendant had a particular interest, was not abandoned.

   [7]    R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13.

10. In all the circumstances, I consider this case one where it is appropriate that the plaintiff pay the defendants’ costs of and occasioned by the application, such costs to be taxed if not agreed.