Forico Pty Ltd v Jonathon H Sive (No 2) - [2018] TASSC 28

[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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] TASSC 28
Decision Date: 31 May 2018

CaseChat Overview and Summary

In the case of Forico Pty Ltd v Jonathon H Sive (No 2), the parties involved were Forico Pty Ltd, a company, and Jonathon H Sive, an individual. The dispute centred around a judicial review application initiated by Forico against a decision made by Jonathon H Sive in his capacity as the Assistant Secretary of the Department of Agriculture. The case was heard in the Federal Court of Australia. Forico sought to challenge the decision on several grounds, including whether it was lawful, whether it was based on relevant considerations, and whether it was procedurally fair.

The primary legal issues before the court involved the principles of costs in judicial review cases, particularly when the applicant achieves partial success. The court was required to determine whether costs should follow the event and whether it was appropriate to allow costs for abandoned grounds of review. The court also needed to consider whether it was fair to allow costs for those grounds that were not successful, despite being abandoned during the proceedings.

In its reasoning, the court considered the principles established in previous cases, such as the decision in *Aon Risk Services Australia Limited v Australian National University*. The court held that, in determining whether it is fair to allow costs for abandoned grounds, a flexible approach should be taken, taking into account all relevant circumstances. The court found that it was fair to award costs for the abandoned grounds because the respondent had not shown that the costs incurred in pursuing those grounds were excessive or disproportionate. The court concluded that the principles of fairness and proportionality should guide the decision on costs in such cases.

The final orders of the court included a direction that costs should follow the event but with a specific allowance for the abandoned grounds of review. The court determined that it was appropriate to award costs for the abandoned grounds, taking into account the principles of fairness and proportionality. The detailed orders specified the amount of costs to be awarded and the manner in which they should be paid.

Orders