City of Canning v Avon Capital Estates (Australia) Ltd
[2009] WASCA 120 (S)
•13 JULY 2009
CITY OF CANNING -v- AVON CAPITAL ESTATES (AUSTRALIA) LTD [2009] WASCA 120 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2009] WASCA 120 (S) | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:67/2008 | 17 APRIL 2009 | |
| Coram: | MARTIN CJ WHEELER JA BUSS JA | 13/07/09 | |
| 20/10/09 | |||
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Application for indemnity costs dismissed | ||
| B | |||
| PDF Version |
| Parties: | CITY OF CANNING AVON CAPITAL ESTATES (AUSTRALIA) LTD |
Catchwords: | Indemnity costs Turns on own facts |
Legislation: | Nil |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : CITY OF CANNING -v- AVON CAPITAL ESTATES (AUSTRALIA) LTD [2009] WASCA 120 (S) CORAM : MARTIN CJ
- WHEELER JA
BUSS JA
DECISION : 20 OCTOBER 2009 FILE NO/S : CACV 67 of 2008 BETWEEN : CITY OF CANNING
- Appellant
AND
AVON CAPITAL ESTATES (AUSTRALIA) LTD
Respondent
(Page 2)
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram : JUDGE J CHANEY (DEPUTY PRESIDENT)
Citation : CITY OF CANNING and AVON CAPITAL ESTATES (AUSTRALIA) LTD [2008] WASAT 46
File No : DR 419 of 2007
Catchwords:
Indemnity costs - Turns on own facts
Legislation:
Nil
Result:
Application for indemnity costs dismissed
Category: B
Representation:
Counsel:
Appellant : Mr K M Pettit SC & Mr P L Wittkuhn
Respondent : Mr J D Elliott SC & Mr P G McGowan
Solicitors:
Appellant : McLeods
Respondent : DLA Phillips Fox
Case(s) referred to in judgment(s):
Nil
(Page 3)
1 MARTIN CJ: I agree with Wheeler JA.
WHEELER JA:
The application
2 Pursuant to leave granted at the time at which judgment was delivered in this matter, the respondent has made an application for indemnity costs in relation to the appeal, and has filed written submissions and some affidavit material in support of that application. The application is made on two bases. In my view, neither of the reasons advanced justifies an award of indemnity costs in the present case.
Case "hopeless"
3 The first basis upon which the respondent seeks indemnity costs is that it is submitted that this is a case where a party, properly advised, should have known that it had no chance of success. It was submitted that the law was "clear and compelling" that the appellant's case for an extension of time was so weak that upon proper consideration the appellant should not have persisted with it.
4 The first thing to note about this submission is that it is not submitted that the substantive point which the appellant wished to agitate in the appeal was hopeless. While there may be cases in which it would be appropriate to do so, it seems to me that the court should generally be slow to make an award of indemnity costs against a party which seeks to agitate an arguable issue of law, merely on the basis that the party should have known that, as a matter of discretion, the court would not extend time or grant the party some other indulgence necessary in order to allow the issue to be agitated.
5 The second thing which is notable about the respondent's submissions concerning the discretion issue is that the respondent supports the submission that the appellant's case for an extension was "hopeless" based only upon references to the court's reasons for decision refusing the extension of time. It is not appropriate to use hindsight reasoning of this kind to demonstrate that a case was "hopeless". The mere fact that the court has rejected an argument does not demonstrate that the argument lacked any merit. That is particularly so, it seems to me, when the argument is one concerning a discretionary decision which will generally require the balancing of a number of factors.
(Page 4)
6 Finally, the appellant in its written submissions in relation to the indemnity costs application mentioned six factors which might have supported a view that the court should have excused the appellant's delay and granted the extension sought. I do not think it is necessary to set those matters out. It is sufficient for present purposes to note that none of them seems to me to be frivolous. I am not prepared therefore to conclude that, upon proper consideration, the appellant should not have persisted with its application.
Two "extraneous" issues
7 In the alternative, the respondent submits that it is entitled to indemnity costs in respect of time spent out of court, in preparing for the appeal, in relation to two "extraneous" issues. It is submitted that the extraneous issues which the appellant sought to agitate in the appeal were the question of whether the land in question here had been the subject of an earlier reservation under Town Planning Scheme No 16 (TPS 16), and the question of the date at which the respondent first became the owner of the land. They are the issues which I dealt with at [22] - [25] of my reasons for decision and which were the subject of the concession referred to at [44] of the reasons of Buss JA.
8 As I understand the argument of the appellant, it was that because the proceedings before the tribunal were in substance to be regarded as "demurrer" proceedings, the tribunal should have assumed, for the purpose of those proceedings, that the appellant would be able to make out the factual contentions that the land had been reserved by TPS 16 and that the appellant was not the owner of the land at the date of the reservation. To the extent that the appellant's submissions in the appeal appeared to deal with those factual issues, it was submitted that they did so only for the purpose of demonstrating that the appeal was not moot in relation to those matters. The correspondence between the parties, which has been placed before us by way of attachments to the affidavit of Guy Shenton French, sworn 6 May 2009, does not clearly indicate, in my opinion, whether the respondent's position should always have been understood as that these contentions of fact were not matters with which the Court of Appeal could deal, or whether it was the position of the respondent that the appellant's contentions of fact were inaccurate. Certainly by the time the matter came before us, it appears to me that it was reasonably clear that the appellant was not suggesting that either of the factual issues required determination by the Court of Appeal; rather, it was seeking to indicate that there were factual issues which, if assumed in its favour, would lead to the conclusion that the land in question was not
(Page 5)
- "injuriously affected" by the making of Town Planning Scheme No 40 (TPS 40). It may be that that matter was not always as clear as it should have been, and it may be that the respondent spent some time dealing with those factual assertions which, so far as the appeal was concerned, it was not strictly necessary to spend. However, they were relatively confined factual issues, and it does not seem to me that the time spent on them would have been significant in any event.
9 Further, as is clear from the concession referred to in [44] of the reasons for decision of Buss JA, it appears likely that these factual matters will, in any event, be the subject of submission and argument before the arbitrator. In the context of the dispute between the parties as a whole, it may well be that the costs will not have been costs thrown away in any event.
10 I would therefore not make an award of indemnity costs in favour of the respondent for either of the reasons which the respondent has advanced.
11 BUSS JA: I agree with Wheeler JA.
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