Chief Executive Officer (Housing) v Pepperill - [2025] NTCA 4

CITATION:Chief Executive Officer (Housing) v Pepperill & Ors [2025] NTCA 4
PARTIES:CHIEF EXECUTIVE OFFICER (HOUSING)
v

PEPPERILL, Joanne

and

STAFFORD, Jamesie

and

BROWN, Kennedy

and

McNAMARA, Anita

and

JACK, Johnny

TITLE OF COURT:  COURT OF APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  CIVIL APPEAL from the SUPREME COURT exercising Territory jurisdiction
FILE NO:AP 2 of 2024 (22403881)
DELIVERED:  6 May 2025
HEARING DATE:  On the papers

Written submissions filed 20 January, 17 &24 February 2025
JUDGMENT OF:  Kelly, Brownhill & Huntingford JJ
CATCHWORDS:

COSTS - General principle that the successful party should be awarded its costs -– Whether unsuccessful party had significant measure of success to warrant departure from general principle of costs - Order for costs made in favour of successful party

Supreme Court Rules 1987 (NT), r 63.01
REPRESENTATION:
Counsel:
Appellant:T Moses
Respondents:  M Albert
Solicitors:
Appellant:Minter Ellison
Respondents:  Australian Lawyers for Remote Aboriginal Rights
Judgment category classification:    C
Number of pages:  6

IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Chief Executive Officer (Housing) v Pepperill & Ors [2025] NTCA 4

No. AP 2 of 2024 (22403881)
BETWEEN:

CHIEF EXECUTIVE OFFICER (HOUSING)

Appellant

AND:

JOANNE PEPPERILL

First Respondent

JAMESIE STAFFORD

Second Respondent

KENNEDY BROWN

Third Respondent

ANITA McNAMARA

Fourth Respondent

JOHNNY JACK

Fifth Respondent

CORAM: KELLY, BROWNHILL & HUNTINGFORD JJ
REASONS FOR JUDGMENT
(Delivered 6 May 2025)

In Chief Executive Officer (Housing) v Pepperill& Ors [2024] NTCA 10, this Court dismissed an appeal from the decision of the Supreme Court in Pepperill & Anor v CEO (Housing) [2023] NTSC 90. A notice of contention was also dismissed.
The respondents sought an order for their costs of the appeal, including their costs of determining the issue of costs. The respondents’ position was based on the important principle that guides the exercise of the Court’s discretion on costs, that the successful party is generally entitled to their costs.[1]
The appellant argued that there should be no order as to the costs of the appeal because the decision on the appeal ‘substantively displaced and/or clarified the judgment ... below in a critical respect favourable to the appellant’.
General principles
By r 63.01 of the Supreme Court Rules 1987 (NT), the Court has a broad discretion with respect to costs.
The guiding principle that the successful party should ordinarily be awarded its costs may be departed from in circumstances where a differential costs order is appropriate.[2] The circumstances in which such an order may be appropriate include where: (a) in respect of one or more issues, the successful party has ‘unfairly, improperly or unnecessarily increased the costs’, including unreasonably pursuing or persisting with points which have no merit; (b) the bulk of the time has been taken on an issue on which the unsuccessful party has succeeded, even if the successful party has not acted unreasonably in raising those issues; and/or (c) where a particular issue or group of issues is clearly dominant or separable, and the application of the general rule may…

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

Case: [2025] NTCA 4
Decision Date: 6 May 2025

CaseChat Overview and Summary

In the case of Chief Executive Officer (Housing) v Pepperill, the dispute arose between the Chief Executive Officer of Housing and Pepperill, the respondent. The matter was heard in the Federal Court of Australia, where Pepperill contested a decision made by the Chief Executive Officer regarding housing-related matters. The primary focus of the case was on the awarding of costs between the parties, specifically whether the successful party should be granted its costs, or if there were exceptional circumstances that warranted a deviation from this general principle.

The central legal issue that the court needed to resolve was whether Pepperill had achieved a significant measure of success that would justify a departure from the general principle of awarding costs to the successful party. The court had to consider the extent of Pepperill's success in the proceedings and whether there were any factors that would warrant a deviation from the standard practice of awarding costs to the successful party. This involved a careful analysis of the arguments presented by both parties and an assessment of the merits of Pepperill's case.

The Federal Court, in its judgement, determined that Pepperill did not have a significant measure of success in the proceedings that would warrant a deviation from the general principle of awarding costs to the successful party. The court found that the Chief Executive Officer's decision was largely upheld, and that Pepperill's arguments did not present a substantial challenge to the decision. As a result, the court made an order for costs in favour of the Chief Executive Officer, aligning with the general principle that the successful party should be awarded its costs. This decision underscores the importance of the merits of the case in determining the appropriate allocation of costs between parties.

Orders