Construction Occupations Registrar v Bates (No 2)

[2017] ACTCA 27

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 follow the event.

1. The respondent submitted that the subject matter of the proceedings in the ACT Civil and Administrative Tribunal and three subsequent appeals was a matter of public importance. Counsel for the respondent referred to the submissions made by the appellant before the primary judge in support of the application for leave to appeal that the interpretation of s 29(1)(b) of the Building Act had important ramifications for the ACT building industry. He submitted that the appellant did not have a settled view of the interpretation of the section at the time the actions were being taken by the respondent. He submitted that the decision in Oshlack v Richmond River Council (1998) 193 CLR 72 was of general application and not simply confined to the environmental litigation. He also referred to the decision of the House of Lords in Liversidge v Anderson [1942] AC 206 at 283 (referred to by Gaudron and the Gummow JJ in Oshlack at [42]). He submitted that Liversidge was a case in which “the House thought it inappropriate that costs be sought or awarded”. He submitted that it was within the breadth of the discretion of the Court on appeal to not award some or all of the costs of the party that was ultimately successful if, for example, the issue was an important one that needed resolution.  He submitted that Oshlack and Liversidge were two of a large number of cases in which such approach had been adopted.

Determination

1. The starting point is the usual rule namely that costs follow the event: see Oshlack at [67]. In the light of the submissions that have now been made, the Court does not consider that this is a case where a departure from the usual rule is warranted.

1. First, it is commonplace that, in an age of ubiquitous statute law, cases at first instance and on appeal will involve resolving questions of statutory interpretation of significance.  That alone is not a sufficient basis for departing from the usual rule.

1. Second, this is not a case which was simply being used as a vehicle to test a point of general principle. Rather, it was a case which was closely tied to its individual circumstances and raised a point which had not previously been the subject of controversy in the courts.

1. Third, it is not a case in which the erroneous interpretation of the Building Act found to have been adopted at each of the three levels below was one not propounded by the unsuccessful respondent. At each of the three levels at which the matter was considered prior to reaching the Court of Appeal, the respondent positively propounded an interpretation of the Building Act which this Court has found to be incorrect.

1. Fourth, the reference to Liversidge does not advance the respondent’s position. Clearly, in the circumstances of wartime Britain, that was a case of wider general significance than the present. More significantly, it was a case in which the respondent, the Home Secretary, was invited to not ask for costs and chose not to do so. The fact that Lord Atkin dealt with the issue of costs in the manner that he did, by inviting junior counsel for the Home Secretary not to ask for costs, is indicative of the strength of the presumption that, if asked for, a costs order in favour of the successful party would be made. It was the fact that costs were not asked for rather than any decision of the House which resulted in there being no order as to costs. Having regard to the opinion of Viscount Maugham (at 225) it is most likely that, if it was asked for, a costs order would have been made.

1. As a consequence, the appropriate order is:

1.    The respondent is to pay the appellants costs of the appeal.

I certify that the preceding eleven [11] numbered paragraphs are a true copy of the Reasons for the Court.

Associate:

Date: 17 July 2017