Cambria Green Agriculture and Tourism Management Pty Ltd; v Attorney-General (No 2)
[2021] TASFC 10
•19 August 2021
[2021] TASFC 10
| COURT: | SUPREME COURT OF TASMANIA (FULL COURT) |
| CITATION: | Cambria Green Agriculture & Tourism Management Pty Ltd |
| v Attorney-General (No 2) [2021] TASFC 10 | |
| PARTIES: | CAMBRIA GREEN AGRICULTURE & TOURISM MANAGEMENT PTY LTD CAMBRIA GREEN AGRICULTURE DEVELOPMENT PTY LTD STAR GREEN AGRICULTURE DEVELOPMENT LTD EMPEROR SHUN GREEN AGRICULTURE DEVELOPMENT LTD MOON GREEN AGRICULTURE DEVELOPMENT LTD EMPEROR YUE GREEN AGRICULTURE DEVELOPMENT LTD SHENGLONG HONG KONG INVESTMENT LTD SUN GREEN AGRICULTURE DEVELOPMENT LTD SIU LAM SUEN LIU KEJING |
| v | |
| THE HONOURABLE ELISE ARCHER, ATTORNEY-GENERAL FOR TASMANIA | |
| FILE NO: | FCA 3005/2020 |
| JUDGMENT | |
| APPEALED FROM: | Cambria Green Agriculture & Tourism Management Pty Ltd |
| v Tasmanian Planning Commission [2020] TASSC 58 | |
| DELIVERED ON: | 19 August 2021 |
| DELIVERED AT: | Hobart |
| HEARING DATE: | Written submissions only |
| JUDGMENT OF: | Blow CJ, Brett J, Marshall AJ |
| CATCHWORDS: |
Procedure – Civil proceedings in State and Territory courts – Costs – Depriving successful party of costs – Other
cases – Mistake of judge or magistrate – Indemnity costs order quashed for denial of procedural fairness
– Respondent contested appeal and did not concede denial of procedural fairness until hearing –
Respondent ordered to pay costs.
Aust Dig Procedure [1566]
REPRESENTATION:
Counsel:
Appellants: S B McElwaine SC Respondent: P Turner SC and M Jeanhe
Solicitors:
Appellant: Shaun McElwaine + Associates Respondent: Solicitor-General
| Judgment Number: | [2021] TASFC 10 |
| Number of paragraphs: | 10 |
Serial No 10/2021
File No FCA 3005/2020
CAMBRIA GREEN AGRICULTURE & TOURISM MANAGEMENT PTY LTD
CAMBRIA GREEN AGRICULTURE DEVELOPMENT PTY LTD
STAR GREEN AGRICULTURE DEVELOPMENT LTD, EMPEROR SHUN GREEN
AGRICULTURE DEVELOPMENT LTD, MOON GREEN AGRICULTURE
DEVELOPMENT LTD, EMPEROR YUE GREEN AGRICULTURE
DEVELOPMENT LTD, SHENGLONG HONG KONG INVESTMENT LTD, SUN
GREEN AGRICULTURE DEVELOPMENT LTD, SIU LAM SUEN,
LIU KEJINGG v THE HONOURABLE ELISE ARCHER,
ATTORNEY-GENERAL FOR TASMANIA (NO 2)
| REASONS FOR JUDGMENT | FULL COURT BLOW CJ BRETT J MARSHALL AJ 19 August 2021 |
| Order of the Court: | |
| That the respondent pay the appellants' costs of and incidental to the appeal. |
Serial No 10/2021
File No FCA 3005/2020
CAMBRIA GREEN AGRICULTURE & TOURISM MANAGEMENT PTY LTD
CAMBRIA GREEN AGRICULTURE DEVELOPMENT PTY LTD
STAR GREEN AGRICULTURE DEVELOPMENT LTD, EMPEROR SHUN GREEN
AGRICULTURE DEVELOPMENT LTD, MOON GREEN AGRICULTURE
DEVELOPMENT LTD, EMPEROR YUE GREEN AGRICULTURE
DEVELOPMENT LTD, SHENGLONG HONG KONG INVESTMENT LTD, SUN
GREEN AGRICULTURE DEVELOPMENT LTD, SIU LAM SUEN,
LIU KEJINGG v THE HONOURABLE ELISE ARCHER,
ATTORNEY-GENERAL FOR TASMANIA (NO 2)
| REASONS FOR JUDGMENT | FULL COURT BLOW CJ 19 August 2021 |
1 I agree with Brett J.
2 No 10/2021
File No FCA 3005/2020
CAMBRIA GREEN AGRICULTURE & TOURISM MANAGEMENT PTY LTD
CAMBRIA GREEN AGRICULTURE DEVELOPMENT PTY LTD
STAR GREEN AGRICULTURE DEVELOPMENT LTD, EMPEROR SHUN GREEN
AGRICULTURE DEVELOPMENT LTD, MOON GREEN AGRICULTURE
DEVELOPMENT LTD, EMPEROR YUE GREEN AGRICULTURE
DEVELOPMENT LTD, SHENGLONG HONG KONG INVESTMENT LTD, SUN
GREEN AGRICULTURE DEVELOPMENT LTD, SIU LAM SUEN,
LIU KEJINGG v THE HONOURABLE ELISE ARCHER,
ATTORNEY-GENERAL FOR TASMANIA (NO 2)
| REASONS FOR JUDGMENT | FULL COURT BRETT J 19 August 2021 |
2 On 3 June 2021, this Court upheld an appeal by the appellants against an order which required them to pay the costs of the respondent in respect of the proceedings at first instance on an indemnity basis, notwithstanding that they were successful in those proceedings. As was explained in the reasons of this Court for upholding the appeal, the respondent had joined the proceedings at first instance in order to act as a contradictor: Cambria Green Agriculture & Tourism Management Pty Ltd v Attorney- General [2021] TASFC 8.
3 The appellants seek an order for costs in respect of the successful appeal. The issue of costs is in the discretion of this Court, but the usual approach to the exercise of that discretion is that an order for costs should be made in favour of the successful appellants unless there are circumstances which justify a different order. The respondent submits that a different order is justified in this case. In particular, it is submitted that there should be no order for costs, and each party should bear their own costs of the appeal.
4 The first reason advanced by the respondent for departure from the usual approach is that "the expense of the present appeal was not visited upon the appellants by any conduct or submission made by the respondent". It is submitted that in the primary proceedings, the respondent did not seek an indemnity order with respect to its costs, that the order was made unexpectedly and without warning, and was not contributed to by the conduct of the respondent. Further, the respondent's counsel points out that the ground upon which this appeal was upheld, ground 1, which asserted a lack of procedural fairness, was conceded by the Solicitor-General during the hearing of the appeal.
5 This argument is rejected. It may well be that the respondent did not seek the indemnity costs order which was made by the primary judge, but once the order was made, certainly sought to take advantage of it. As is clearly demonstrated by the correspondence annexed to the appellants' counsel's submissions, by letter dated 4 December 2020, prior to commencement of the appeal, the appellants sought an assurance from the respondent that the costs order would not be enforced, and that by agreement, the parties would each bear their own costs of the primary proceedings. The respondent rejected this offer by correspondence dated 15 December 2020, again prior to the commencement of the appeal, and insisted on compliance with the impugned order. Of course, the substance of the offer made by the appellants is consistent with the outcome of the appeal.
6 Further, the concession made by the Solicitor-General with respect to ground 1 during the course of submissions on the appeal, has little if any significance to the question of costs. As the appellants' counsel points out, the concession was made during the course of submissions, after
3 No 10/2021
questions from the Court. It is abundantly clear from written submissions filed prior to the hearing, that the respondent opposed the appeal and was seeking to uphold the original costs order in her favour. The respondent did not make any concession with respect to ground 1, prior to oral argument. Accordingly, the appellants had no choice but to prepare for and argue the appeal in order to seek relief from the costs order. There is no merit in the respondent's first submission.
7 The respondent also submits that costs should not be awarded to the appellant because the appeal was successful only as to ground 1, and ground 2 was found to be without merit. There is no doubt that in appropriate circumstances, an appeal court can fashion a costs order to reflect the mixed success of an appeal. This includes a situation where an appeal has succeeded on some grounds but not others, particularly where the inclusion of unmeritorious grounds has significantly increased the costs of the appeal. However, this position is exceptional, and courts are generally wary about taking an issue by issue approach to the question of costs: See Burnie Port Corporation Pty Ltd v Bank of Western Australia Ltd (No 3) [2003] TASSC 132, 12 Tas R 325 at [26]-[27].
8 In this case, an approach based on the different outcome of the grounds of the appeal is not warranted. The inclusion and argument of the unsuccessful ground did not significantly or markedly increase the costs of or time taken in respect of the appeal, certainly not to the extent that would justify a departure from the usual approach to costs. In reaching that conclusion, I have taken into account that the appellants had no alternative but to commence and argue the appeal, having regard to the failure of the respondent to concede the error identified in count 1 prior to its commencement. Further, given the argument advanced by the respondent, both before the primary judge and on appeal to this Court, the absence of ground 2 would not have obviated the need for the parties and the Court to examine the whole of the record and the conduct of the matter before the Tribunal, in order to re-exercise the costs discretion. The approach of the respondent throughout the appeal was that, irrespective of the denial of procedural fairness, she was entitled to an order for costs, at least on a party and party basis, in respect of the proceedings before the primary judge. Contrary to this position, and as I explained in my reasons published in respect of the substantive appeal, the respondent's lack of success in its argument at first instance provided a strong argument for an order for costs in favour of the appellants in respect of those proceedings, but in the exercise of this Court's discretion, it was decided that each party should pay their own costs. The unsustainable position of the respondent in this appeal on this question made a full review of the record inevitable. The absence of ground 2 would not have affected this outcome, and hence would have made little difference to work and time on the part of the appellants required to argue the appeal.
9 Accordingly, I reject the submission of the respondent that there is a basis to depart from the usual order with respect to the costs. I would order that the respondent pay the appellants' costs of the appeal.
4 No 10/2021
File No FCA 3005/2020
CAMBRIA GREEN AGRICULTURE & TOURISM MANAGEMENT PTY LTD
CAMBRIA GREEN AGRICULTURE DEVELOPMENT PTY LTD
STAR GREEN AGRICULTURE DEVELOPMENT LTD, EMPEROR SHUN GREEN
AGRICULTURE DEVELOPMENT LTD, MOON GREEN AGRICULTURE
DEVELOPMENT LTD, EMPEROR YUE GREEN AGRICULTURE
DEVELOPMENT LTD, SHENGLONG HONG KONG INVESTMENT LTD, SUN
GREEN AGRICULTURE DEVELOPMENT LTD, SIU LAM SUEN,
LIU KEJINGG v THE HONOURABLE ELISE ARCHER,
ATTORNEY-GENERAL FOR TASMANIA (NO 2)
| REASONS FOR JUDGMENT | FULL COURT MARSHALL AJ 19 August 2021 |
10 I agree with the reasons for judgment of Brett J.
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