Capital Territory and Ors - [2007] ACTSC 85

MATTHEW JAMES TRAYNOR (by his next friend PETER TRAYNOR) v
AUSTRALIAN CAPITAL TERRITORY and OTHERS

LINDA TRAYNOR and OTHERS v AUSTRALIAN
CAPITAL TERRITORY and OTHERS
[2007] ACTSC 85 (19 October 2007)

COSTS – Whether the Commonwealth can claim indemnity costs against the Australian Capital Territory – Commonwealth can seek costs orders against a State or Territory – costs awarded on the ordinary basis.

Australian Capital Territory (Self-Government) Act 1988 (Cth), s 7

Australian Capital Territory (Planning and Land Management) Act 1988 (Cth), s 29, s 30, s 51

Judiciary Act 1903 (Cth), s 64

Crown Proceedings Act 1988 (NSW), s 5

Traynor v Australian Capital Territory [2007] ACTSC 38

Quirk v Bawden (1992) 112 ACTR 1

Calderbank v Calderbank [1975] 3 WLR 586

The State of Victoria and Another v The Commonwealth (1957) 99 CLR 575

The State of SouthAustralia v The Commonwealth (1962) 108 CLR 130

Debates of the Legislative Assembly for the Australian Capital Territory, 19 October 1988, p 1930

Supplementary Explanatory Memorandum for Australian Capital Territory (Planning and Land Management) Act 1988 (Cth) (19 October 1988)

No. SC 307 of 1999
No. SC 418 of 2002

Judge: Connolly J
Supreme Court of the ACT

Date: 19 October 2007

IN THE SUPREME COURT OF THE       )
  )          No. SC 307 of 1999
AUSTRALIAN CAPITAL TERRITORY    )          No. SC 418 of 2002

BETWEEN:MATTHEW JAMES TRAYNOR (by his next friend PETER TRAYNOR)
Plaintiff

AND:AUSTRALIAN CAPITAL TERRITORY
First Defendant

AND:JOSE ALFREDO GUEVARA
Second Defendant

AND:COMMONWEALTH OF AUSTRALIA
Third Defendant

ORDER

Judge:  Connolly J
Date:  19 October 2007
Place:  Canberra

THE COURT ORDERS THAT:

There be costs for the Commonwealth in these proceedings on the ordinary basis.

This is an application for costs on an indemnity basis following the resolution of a personal injury claim. The circumstances of the claim were tragic. It involved a young boy on a bike who was struck by a car and suffered profound injuries, which ultimately lead to his death. The action was commenced on the boy’s behalf by his parents and then continued by the estate. Another action was commenced by the boy’s parents and sibling in relation to nervous shock.

The circumstances of the accident are fully set out in my substantive judgment (Traynor v Australian Capital Territory [2007] ACTSC 38). Briefly, the boy and his friend were out riding in the suburbs near their homes. On their return they proceeded along a footpath that, as I found, was a shared use footpath and cycleway. The path intersected with a road, and very near that intersection a bushy shrub had been planted which, I found, significantly affected the opportunity for a motorist to be aware of the presence of the footpath.

The action was commenced against the motorist on ordinary grounds of negligence, and the Australian Capital Territory (the Territory) as the municipal authority responsible, as at the date of the accident in August 1996, for the pathway. The Territory took steps to join the Commonwealth to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Capital Territory and Ors [2007] ACTSC 85
Case: [2007] ACTSC 85
Decision Date: 19 October 2007

CaseChat Overview and Summary

The case involved the Commonwealth and the Australian Capital Territory, which was a dispute that reached the High Court. The central issue was whether the Commonwealth could claim indemnity costs against the Australian Capital Territory in proceedings brought by the Territory against the Commonwealth. The legal question revolved around whether a Commonwealth could seek indemnity costs against a State or Territory, and if so, under what circumstances and on what basis the costs should be awarded.

The court held that the Commonwealth could indeed seek indemnity costs against a State or Territory, provided that the Territory had acted without reasonable grounds or had acted vexatiously, oppressively, or abusively. The court found that the Australian Capital Territory had not acted in such a manner, but the Commonwealth was entitled to seek costs on the ordinary basis. The reasoning was grounded in the principle that the Commonwealth should not be put to unnecessary expense by a State or Territory without just cause. The ordinary basis for costs means that the costs are assessed and awarded in the usual manner, without any special considerations for the status of the parties involved.

The outcome of the case was that the Commonwealth was awarded costs on the ordinary basis. This means that the Commonwealth could recover its legal expenses from the Australian Capital Territory, but only to the extent that those expenses would have been incurred in any ordinary litigation. The court's decision did not allow for any special or indemnity costs, as it found that the Australian Capital Territory's actions did not warrant such an award. The final order was that the Commonwealth was to be compensated for its costs in the proceedings on the ordinary basis, reflecting the court's determination that the Territory's actions did not meet the threshold for indemnity costs.

Orders

Orders of the court

1. There be costs for the Commonwealth in these proceedings on the ordinary basis.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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