Caloundra City Council v Minister for Natural Resources

[1999] QSC 189

IN THE SUPREME COURT

OF QUEENSLAND

No. 6395 of 1998
Brisbane

Before Justice Wilson

[Caloundra City Council v Minister for Natural Resources & Ors]

BETWEEN:

THE COUNCIL OF THE CITY OF CALOUNDRA

Applicant

AND:

THE MINISTER FOR NATURAL RESOURCES

First Respondent

AND:

ROBERT LACK

Second Respondent

AND:

PIPI HOLDINGS PTY LTD

Third Respondent

REASONS FOR JUDGMENT - WILSON J

Judgment delivered 6 August 1999

Further order delivered 12 August 1999

1. The applicant has succeeded in obtaining an order that the decision under review be quashed. 

2. The hearing was completed in one day. The evidence was all on affidavit, and there was no cross-examination. Counsel made written submissions to which they spoke. 

3. The Uniform Civil Procedure Rules provide:-

   “General rule about costs

   689 (1) Costs of a proceeding are in the discretion of the court but follow the event, unless the court considers another order is more appropriate. 

   (2) Subrule (1) applies unless these rules otherwise provide.”

   and

   “Costs of question or part of proceeding

   682 (1) The court may make an order for costs in relation to a particular question in, or a particular part of, a proceeding.

   (2)  For subrule (1), the court may declare what percentage of the costs

   of the proceeding is attributable to the question or part of the proceeding to which

   the order relates.”

   These rules reflect the general law on costs which was summarized by Toohey J. in Hughes v Western Australian Cricket Association (Inc.) (1986) A.T.P.R. 40-748 at 48,136 as follows:-

   “1.       Ordinarily, costs follow the event and a successful litigant receives his costs in the absence of special circumstances justifying some other order. Ritter v. Godfrey (1920) 2 K.B. 47.

   2.        Where a litigant has succeeded only upon a portion of his claim, the circumstances may make it reasonable that he bear the expense of litigating that portion upon which he has failed. Forster v. Farquhar (1893) 1 Q.B. 564.

   3.        A successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other party’s costs of them. In this sense, “issue” does not mean a precise issue in the technical pleading sense but any disputed question of fact or of law. Cretazzo v. Lombardi (1975) 13 S.A.S.R. 4 at p.12.”

4. In argument the majority of the time was occupied with the issue which prompted the first and second respondents to make the decision which I have quashed (that is, the issue of whether there had been a properly constituted objection hearing). The parties did address the issue on which the decision ultimately turned (that is, whether the Minister ought to have transmitted the  application to the Governor in Council) in written and oral submissions -

   Applicant:                     written submissions - paras. 40-42; oral submissions pages 19-21

   First and Second       written submissions - paras. 15-20; oral submissions pages 54-56

   Respondents:

   Third Respondent:     oral submissions pages 40-44.

5. It was submitted by the respondents that in view of my decision on the underlying issue the applicant’s success is pyrrhic. It may prove to be so, but it is not for the court to presume what decision the Governor in Council will make.

6. The underlying issue was first raised by the third respondent. It was as a result of representations on its behalf that the first and second respondents made the decision I have quashed. It was nevertheless their decision. Thus each party bears some responsibility for what occurred.

7. The matter was heard and determined in one day, and I am not disposed to make a costs order on an issues basis. In all the circumstances I have determined that there should be no order as to costs.

   IN THE SUPREME COURT

   OF QUEENSLAND

   No. 6395 of 1998
   Brisbane

   Before Justice Wilson

   [Caloundra City Council v Minister for Natural Resources & Ors]

   BETWEEN:

   THE COUNCIL OF THE CITY OF CALOUNDRA

   Applicant

   AND:

   THE MINISTER FOR NATURAL RESOURCES

   First Respondent

   AND:

   ROBERT LACK

   Second Respondent

   AND:

   PIPI HOLDINGS PTY LTD

   Third Respondent

   REASONS FOR JUDGMENT - WILSON J

   Judgment delivered 6 August 1999

   Further order delivered 12 August 1999

   CATCHWORDS:     PROCEDURE - COSTS - DEPARTING FROM THE GENERAL RULE - OTHER CASE - order that decision under review be quashed - majority of time occupied with issue on which decision did not ultimately turn - each party partly responsible - no order as to costs

   Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748, considered.

   Uniform Civil Procedure Rules rr 682, 689

   Counsel:Mr P J Favell for the applicant

   Mrs D A Mullins SC for the 1st and 2nd respondents

   Mr P G Bickford for the 3rd respondent

   Solicitors:  Quinn & Scattini as town agents for Garland Waddington for the applicant

   B T Dunphy, Crown Solicitor for the 1st and 2nd respondents

   Lang Hemming & Hall as town agents for Griffiths, McColm &   Parry for the 3rd respondent

   Hearing date:               12 August 1999