Forico Pty Ltd v Jonathon H Sive (No 2)
[2018] TASSC 28
•31 May 2018
[2018] TASSC 28
COURT: SUPREME COURT OF TASMANIA
CITATION: Forico Pty Ltd v Jonathon H Sive (No 2) [2018] TASSC 28
PARTIES: FORICO PTY LTD
v
JONATHON H SIVE
AUSTRALIAN BUILDING & CONSTRUCTION
DISPUTE RESOLUTION SERVICE PTY LTD
SEMF PTY LIMITED
FILE NO: 2733/2017
DELIVERED ON: 31 May 2018
DELIVERED AT: Hobart
JUDGMENT OF: Marshall AJ
CATCHWORDS:
Procedure – Costs – Costs follow event – Partial success – Allowance for abandoned grounds of review – Fairness approach.
Sultan Holdings Pty Ltd v John Fuglsang Developments Pty Ltd [2017] TASFC 14, referred to.
Aust Dig Procedure [1484]
REPRESENTATION:
Counsel:
Applicant: Shaun McElwaine SC
Third Respondent: I Griscti
Solicitors:
Applicant: Shaun McElwaine + Associates
Third Respondent: Barry.Nilsson.Lawyers
Judgment Number: [2018] TASSC 28
Number of paragraphs: 10
Serial No 28/2018
File No 2733/2017
FORICO PTY LTD v JONATHON H SIVE (No 2)
REASONS FOR JUDGMENT MARSHALL AJ
31 May 2018
On 3 May 2018, I published my reasons for judgment on the substantive matter in the proceeding. I directed the parties to file and serve written submissions on costs. I did so because the applicant was not successful on all the grounds it relied on for its application for judicial review. These reasons should be read together with the reasons published in the substantive matter: Forico Pty Limited v Sive [2018] TASSC 21.
As the successful party the applicant seeks an order that the third respondent pay its costs of and incidental to the originating application to be taxed. The third respondent submits that there should be no order as to the costs.
In written submissions filed in support of the position of the third respondent, counsel contended that the applicant was required to prosecute its application fully and satisfy the Court of its merit, irrespective of the position adopted by the third respondent. However, as counsel for the applicant submitted, the third respondent took an active part in the proceeding to defend the adjudication decision in its favour, and to uphold a related judgment it caused to be entered in proceeding 2850/2017. Although the third respondent's opposition to the orders sought did not cause the hearing to take more than one day, the third respondent still actively participated in the proceeding, including by the reliance on comprehensive written submissions. It is not in contest that costs orders may be made in proceedings for judicial review of administrative action.
Counsel for the third respondent referred to the abandonment by the applicant of several original grounds of review some 13 days before the hearing of the application. Counsel contends that the High Court in Probuild Constructions (Aust) Pty Ltd v Shade Systems [2018] HCA 4, and Maxcon Constructions Pty Ltd v Vadasz [2018] HCA 5 confirmed that those grounds were not maintainable. The third respondent submitted that it incurred costs in respect of those grounds and should not be liable for the applicant's costs in that regard.
The applicant was successful in respect of ground (aa) alone, but, as the third respondent conceded, grounds (a), (f) and (g) flowed from ground (aa). This means that there were five grounds which I found were not made out. As counsel for the third respondent submitted, grounds (c), (d) and (i) were significant matters relied upon by the applicant, especially ground (d) which required analysis of relevant case authority. These grounds were addressed by substantial written submissions.
The ordinary position is that costs follow the event, notwithstanding that the successful party has failed on some issues. A party opposing such an order must show some good reason to depart from that position. As Porter AJ (with whom Pearce and Brett JJ agreed) said in Sultan Holdings Pty Ltd v John Fuglsang Developments Pty Ltd [2017] TASFC 14 at [222]:
"[222] Ultimately, fairness dictates how the discretion as to costs should be exercised, and if an issue by issue approach produces a result that is fairer than giving the successful party the whole of the costs notwithstanding the failure of particular issues, then the issue by issue approach should be adopted …".
Counsel for the applicant submitted that "the fairness approach" ought not to displace the position that costs should follow the event. Counsel observed that the primary issue dealt with in the application was ground (aa). The applicant contended that it was this issue which required attention in significant detail to the facts. Counsel submitted that any unfairness which impacts upon the third respondent is adequately addressed by the grant of an indemnity certificate in its favour under the Appeal Costs Fund Act 1968.
My approach to costs in this matter commences with the position that the applicant is prima facie entitled to its costs as the successful party. However fairness dictates that some allowance be made for the fact that the applicant abandoned some grounds of review not long before the hearing and failed to succeed on other grounds of review which were the subject of comprehensive written submissions. I also acknowledge that ground (aa) was the most substantive ground raised on the application as argued before me, and required a detailed examination of relevant factual matters. However, ground (d), a matter on which the applicant did not succeed, required detailed analysis.
As a matter of fairness, some allowance should be made for the abandonment by the applicant of some grounds and its failure to succeed on others, while acknowledging the importance of the fact that the applicant succeeded in the litigation. Doing the best I can, I consider that fairness in the circumstances requires that an order be made that the third respondent pay 75% of the applicant's costs to be taxed.
I order as follows:
1The third respondent pay 75% of the costs of the applicant of and incidental to the originating application filed on 25 September 2017 to be taxed.
2An indemnity certificate issue in favour of the third respondent, pursuant to the Appeal Costs Fund Act 1968.
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