Construction Occupations Registrar v Bates (No 2)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

Construction Occupations Registrar v Bates (No 2)

Citation:

[2017] ACTCA 27

Hearing Date:

Decided on written submissions

Date last submissions filed

30 May 2017

DecisionDate:

17 July 2017

Before:

Elkaim, Mossop and Rangiah JJ

Decision:

The respondent is to pay the appellant’s costs of the appeal.

Catchwords:

APPEAL – PRACTICE AND PROCEDURE – Costs – appeal involving interpretation of Building Act 2004 (ACT) – whether unsuccessful respondent should pay costs of Construction Occupations Registrar – insufficient reasons to depart from the usual rule that costs follow the event – respondent to pay appellant’s costs.

Legislation Cited:

Building Act 2004 (ACT), s 29(1)(b)

Court Procedures Rules 2006 (ACT), r 5001

Cases Cited:

Construction Occupations Registrar v Bates [2017] ACTCA 15

Liversidge v Anderson [1942] AC 206

Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72

Parties:

Construction Occupations Registrar (Appellant)

John Bates (Respondent)

Representation:

Counsel

P A Walker SC (Appellant)

C Erskine SC (Respondent)

Solicitors

ACT Government Solicitor (Appellant)

Snedden Hall & Gallop (Respondent)

File Number:

ACTCA 29 of 2016

Decision under appeal: 

Court/Tribunal:             Supreme Court of the ACT

Before:  Burns J

Date of Decision:         7 July 2016

Case Title:  Construction Occupations Registrar v Bates

Citation: [2016] ACTSC 154

THE COURT:

Introduction

1. On 1 May 2017 the Court allowed the appeal: see Construction Occupations Registrar v Bates [2017] ACTCA 15. Amongst the orders that were made were the following:

3. Unless an application for costs is made pursuant to order 4, there is no order as to the costs of the appeal.

4. Any party seeking a costs order in favour of the party must file and serve written submissions limited to no more than three pages and any evidence within seven days. Any submissions in reply limited to not more than three pages and any evidence must be filed and served within a further seven days.

1. The successful appellant has applied for costs of the appeal. The respondent has submitted that there should be no order as to the costs of the appeal.

1. Part 2.17 of the Court Procedure Rules which relate to costs of proceedings, applies to appellate proceedings: see r 5001(2)–(3). Rule 1721, which is within Part 2.17, provides that costs are in the discretion of the Court.

Submissions

1. The appellant submitted that it was as successful as it could have been on the appeal.  Counsel for the appellant emphasised the significance of the role of the certifier. He submitted that the “plans as plans” argument advanced by the respondent was an interpretation of the approval provisions of the Building Act 2004 (ACT) pressed at every level of the proceedings. He submitted that although the Court of Appeal’s decision resolved the question of law involved in the rejection of the respondent’s interpretation of the Building Act, that was not sufficient to permit characterisation of the case as “public interest litigation” or warrant a departure from the usual order that costs should…