City of Burnside v Attorney-General of South Australia, Pembroke School Inc and Athletics Association of SA Inc No. SCGRG 91/1540 Judgment No. 4797 Number of Pages 6 Costs Intervention

[1994] SASC 4797

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA DEBELLE J

CWDS
Costs - Intervention - whether unsuccessful intervener liable for costs - relevant principles - intervention resulted in substantial extension of hearing - intervener liable only for the costs of the extension of the hearing. Hocking v Southern Greyhound Racing Club Inc (1993) 61 SASR 213; The Athenic (1932) WN 10; Twist v Tye (1902) P 92; Bagshaw v Pimm (1900) P 148; Re Multitech Services Pty Ltd (in liq) (1982) 3 SASR 218 and Colvin v Fraser
(1829) 2 Hagg 266, considered.

HRNG ADELAIDE, 27 April 1994 #DATE 17:10:1994

Counsel for appellant:   Mr P Mcnamara

Solicitors for appellant:                 Thomsons

Counsel for respondent AG (SA):            Mr A Hall

Solicitors for respondent AG (SA):         Crown Solicitor's Office

Counsel for respondent Athletics Assoc'n: Mr H C Williams QC
   with Ms E Croser

Solicitors for resp Athletics Assoc'n:     Stratford and Co

Respondent Pembroke School Inc:            No Attendance

ORDER
The Athletics Association of South Australia to pay to the plaintiff costs in the action.

JUDGE1 DEBELLE J In this action, the plaintiff sought certain orders authorising it to sell an area of park land known as the Olympic Sports Field. As the land appeared to be subject to a charitable trust, the plaintiff joined the Attorney-General as defendant. The Athletics Association of South Australia and Pembroke School Inc were given leave to intervene in the action. Both had interests in the land. The Athletics Association held a lease which was to determine in 1994. Pembroke School held a licence to use part of the land.

2. The Athletics Association and the Attorney-General opposed the relief sought by the plaintiff. I held that the plaintiff was not entitled to the orders it sought. On 31 August 1993 the Full Court allowed an appeal from that decision. In the result the plaintiff substantially succeeded on the issues argued before me and in the Full Court.

3. The Full Court ordered that there be no order as to the costs of the defendant with the intent that the Attorney-General should bear his own costs of the appeal. It further ordered that the question whether costs are payable to or by the Athletics Association of South Australia of and incidental to its resistance to the appeal be reserved for the further consideration of the trial judge. The Full Court also ordered that there be no order as to costs of Pembroke School Inc.

4. The plaintiff seeks an order that the Athletics Association should pay its costs of the appeal. The plaintiff is not entitled to an order that the Athletics Association pay the whole of its costs of the action. The plaintiff had to prove its claim in any event and would not in the ordinary course have recovered costs against the Attorney-General. The plaintiff properly recognises this and seeks only those costs which it has incurred in consequence of the intervention prolonging the hearing of the appeal.

5. The plaintiff also applies for an order that the Athletics Association pay costs in an amount which represents the extent to which the hearing of the action was prolonged by the intervention and for an amount which represents any additional and unnecessary costs occasioned by the intervention.

6. Counsel did not refer to any authority on the question of the liability of interveners in costs. Intervention is a well established procedure in actions in the Admiralty and Probate jurisdictions and there are some well settled principles concerning the capacity of successful interveners to recover costs. It is more difficult to identify decisions concerning the liability of an unsuccessful intervener to pay costs. There does not appear to be any authority in courts of the common law or equity. Intervention was not a procedure available in the common law courts. The texts on Chancery practice do not refer to intervention. The power of this Court to order intervention in other than Probate and Admiralty actions is of relatively recent origin: see, for example, Re Multi-tech Services Pty Ltd (in liq) (1982) 30 SASR 218 and Rule 33 introduced into the Supreme Court Rules in 1987. The practice relating generally to intervention is briefly noted in Hocking v Southern Greyhound Racing Club Inc (1993) 61 SASR 213 at 215, 219-222. It is inappropriate to have regard to cases involving questions of federal constitutional law where different factors govern the question of intervention.

7. In the Probate and Admiralty jurisdiction, the Court had an unfettered discretion to order costs and, as a general rule, costs followed the event. There were some special rules concerning interveners. As a general rule, an intervener in Probate actions was not allowed separate costs even if successful: Twist v Tye (1902) P 92, 98. However, if the intervener's interest differed from that of other parties to the action he might recover his costs: Bagshaw v Pimm (1900) P 148, where the executors and legatees of the first will of a testator defended an action to establish a third and, alternatively, a second will. In that action, the executors were interested only in setting aside the third will but the legatees sought to upset both the second and third wills. The judge pronounced in favour of the first will and by reason of their different interest the legatees recovered their costs. These rules stem from the fact that it was the general practice of the Probate court to allow one set of costs so that if the intervener's interest was the same as that of another party who had pleaded in the action, the intervener should adopt the pleadings of that party: Twist v Tye (supra); Colvin v Fraser (1829) 2 Hagg 266 at 368. The absence of authority in the case of an unsuccessful intervention in Probate actions might be a consequence of the fact that the successful party would have his costs paid out of the estate and the unsuccessful intervener would be bearing his own costs.

8. In Admiralty actions, similar principles apply. A successful intervener would be entitled to his costs only if his intervention was necessary to protect his rights: The Athenic (1932) WN 10. This is consistent with the principle that, generally speaking, an intervener's participation is limited to the protection of his own interest and he must take the cause as he finds it at the time of his intervention: see Hocking v Southern Greyhound Racing Club Inc (supra) at 215 and 219-222 and the cases there cited.

9. Similar rules were also applied in matrimonial suits. Thus in Wade v Wade
(1903) P 16, a successful intervener recovered her costs incurred in successfully defending her interest because one of the parties with whom her interests were aligned chose not to do so. The intervener recovered her costs from both the petitioner and her husband. In Darnborough v Darnborough (1929) 45 TLR 603 a person who had unnecessarily intervened in a suit seeking dissolution of a marriage was not entitled to recover her costs.

10. It would seem, therefore, to be appropriate to apply similar rules in cases where a party intervener pursuant to an order made under Rule 33. Thus, generally speaking, a successful intervener will recover costs only if the intervention was necessary to protect his interest. A successful intervener is unlikely to recover his costs even if the intervention was well intentioned and proved to be of assistance to the Court: Liverpool City Council v Weir
(1984) 53 ALR 77, 83.

11. There appears to be no reason why as a matter of general principle an unsuccessful intervener should not be subject to the general rule that costs follow the event. However, it is not appropriate to apply that general rule without qualification. If a successful intervener is not entitled to his costs where his interests are adequately protected by an existing party to the action, it would be inequitable for an unsuccessful intervener to be liable to costs in like circumstances. However, an unsuccessful intervener might be liable for costs if his intervention has substantially extended the hearing or put the successful party to unnecessary cost. In such circumstances, the intervener might be liable to pay a portion of the successful party's costs, that portion being determined by the extent to which the hearing has been lengthened by the intervention. Such a rule is consistent with the principle that, generally speaking, an intervener must take the action as he finds it.

12. In determining whether the intervener should be liable for costs, the Court should adopt a broad axe approach. If the hearing was slightly longer than it would have been but for the intervention, it might not be appropriate to order the intervener to pay costs. It will be a question of fact and degree in every case whether the intervener's participation has resulted in the trial being substantially longer than it would have been but for the intervention. In determining whether the intervener should be liable, it would be appropriate to have regard also to such factors as whether the interest which the intervener sought to protect was adequately protected by an existing party. Depending on the nature of the issues in the action, it might be a relevant factor that the intervener has assisted the parties and the Court in identifying or elucidating the issues. It is not unrealistic to suppose that, although the intervention has prolonged the trial, the intervener's participation has been of substantial assistance. In such a case, it might be inequitable to order the intervener to contribute to the costs of the successful party.

13. With those general principles in mind, I turn to the plaintiff's application. It is common ground that the hearing of the appeal in this action occupied some two and a half days and that the argument by counsel for the intervener occupied some two hours of that time. It cannot be said, therefore, that the intervener's participation unduly prolonged the hearing of the appeal. For these reasons the plaintiff is not entitled to recover any portion of its costs of the appeal from the intervener.

14. The hearing of the action occupied some two and half days. The plaintiff submits that the intervention extended the hearing by about one-half day and seeks the cost of that half. The Athletics Association submits that its intervention did not in any respect extend the hearing of the action. It points also to the fact that the plaintiff failed in the primary relief sought by it, namely, an order that it be authorised to sell the land. The additional one-half day was in large part caused by the fact that the Athletics Association required the plaintiff to call its City manager for cross-examination on his affidavit. The cross-examination did not elucidate any new material nor did it assist in the resolution of any of the issues. In my view the hearing was extended to that extent by the intervention. But for that intervention, the hearing would have concluded in two days. Further, although the interest which the Athletics Association sought to protect was not identical with those which the Attorney-General sought to protect, the submissions made by each were in large part very similar. I think, therefore, that the plaintiff is entitled to an order that it be compensated to the extent that the intervention prolonged the hearing. It is not appropriate to descend into minute detail for this purpose. Instead, a broad axe approach should be adopted, a view with which both parties concurred. The intervention did result in what in all the circumstances was a substantial extension of the hearing. In all the circumstances I think it appropriate to order that the Athletics Association pay the plaintiff a refresher for junior counsel and the cost of a solicitor attending for one-half day.

15. Different considerations obtain in relation to the plaintiff's application for an order that it be reimbursed for any additional costs occasioned by the intervention. The issues in this action required all the parties, in particular, the plaintiff to undertake a substantial degree of historical research concerning the circumstances in which the plaintiff came to be possessed of the Olympic Sports Field, the question whether the land was impressed with a trust and, if so, the terms of that trust, and whether the land was park land within the meaning of the Local Government Act 1936. The land was originally vested in trustees on 8 January 1874. In 1888 the land was transferred to the plaintiff subject to certain trusts, but not until after a number of meetings of the plaintiff and of the original trustees and after the trustees had brought a petition in this Court applying for advice and direction pursuant to s25 of The Property Act 1860. It was necessary to trace the history through a considerable number of documents. Some of the original documents had been lost. The plaintiff's earlier records and documents relating to this matter had not been kept carefully. It was necessary to make thorough searches of the plaintiff's minutes of its Council meetings, at the Lands Titles Office, at the General Registry Office, and in the Registry of this Court. In short, the parties had to engage in a long paper chase through historical documents some of which were difficult to locate. At different occasions in the course of the pre-trial interlocutory applications, one party would suggest a further line of enquiry. On some occasions, the Athletics Association asked the plaintiff for further and better discovery and to undertake further searches. Orders were made to that effect. The plaintiff says that some of those searches were unnecessary and unproductive. Many of the enquiries would have been avoided had the plaintiff kept its records more carefully. The evidence pointed to the fact that the plaintiff had lost a declaration of trust relating to the land, a document which would have had a crucial bearing on some of the issues. I acknowledge that some of the records were more than 100 years old but it is fair to say that the plaintiff's record keeping left something to be desired.

16. Again, it is desirable to take a broad view. I do not think that any party can be fairly criticised for calling on the plaintiff to make further and better discovery and conduct further searches. It would be quite difficult and in the result not very productive to seek to determine what, if any, searches were unnecessary. In all the circumstances, I do not think it appropriate to order the Athletics Association to pay any part of the plaintiff's costs in undertaking the searches or other enquiries which it was ordered to conduct.

17. The Athletics Association applied for an order that it be paid its costs in defending its interest. There is no justifiable basis for that submission. While the Athletics Association's intervention was for the purpose of advancing its particular interest under the lease, that interest was to determine in 1994. That interest aside, the interests of the Athletics Association in the action were in large part the same as those which the Attorney-General was seeking to protect. In all the circumstances the Athletics Association's application for costs must be dismissed.

18. For these reasons, there will be orders as follows.
    1. The Athletics Association of South Australia should pay
    to the plaintiff costs in the action - an amount equivalent
    to a refresher for junior counsel for one half day and a
    solicitor's fee for one half day.

2. There will be no other orders as to the costs of the
    action or of the appeal.