Gamble v Kingborough Council (No 2)

[2020] TASFC 8

[2020] TASFC 8

COURT:	SUPREME COURT OF TASMANIA (FULL COURT)
CITATION:	Gamble v Kingborough Council (No 2) [2020] TASFC 8
PARTIES:	GAMBLE, Anthony Paul
GAMBLE (nee Watson), Deborah Anne
SLAGHUIS, Shelley Adriana
PAINE, Ritchie
v
KINGBOROUGH COUNCIL
FILE NOS:	1114/2020
DELIVERED ON:	12 November 2020
DELIVERED AT:	Hobart
HEARING DATE:	12 November 2020
JUDGMENT OF:	Blow CJ, Brett J, Geason J
CATCHWORDS:

Procedure – Civil proceedings in State and Territory courts – Costs – General rule: costs follow event – Other particular cases and matters – Full Court appeal re convictions imposed by magistrate.

Justices Act 1959 (Tas), s 125.

Aust Dig Procedure [1485]

REPRESENTATION:

Counsel:

Appellants:	Dr N Davidson
Respondent:	M Butler

Solicitors:

Respondent:  Simmons Wolfhagen

Judgment Number:	[2020] TASFC 8
Number of paragraphs:	14

Serial No 8/2020

File No 1114/2020

ANTHONY PAUL GAMBLE, DEBORAH ANNE GAMBLE (nee WATSON),

SHELLEY ADRIANA SLAGHUIS and RITCHIE PAINE

v KINGBOROUGH COUNCIL (NO 2)

REASONS FOR JUDGMENT	FULL COURT BLOW CJ BRETT J GEASON J 12 November 2020
Order of the Court

That the first, second and third appellants pay the costs of the respondent of and incidental to the appeal.

Serial No 8/2020

File No 1114/2020

ANTHONY PAUL GAMBLE, DEBORAH ANNE GAMBLE (nee WATSON),

SHELLEY ADRIANA SLAGHUIS and RITCHIE PAINE

v KINGBOROUGH COUNCIL (NO 2)

REASONS FOR JUDGMENT	FULL COURT
(DELIVERED ORALLY)	BLOW CJ 12 November 2020

1            This is an application for the costs of a Full Court appeal. The appellants were unsuccessful in the appeal and the respondent has applied for costs.

2             The matter has a sorry history. The appellants were involved in the operation of a mobile coffee cart in circumstances where a permit from the respondent, the Kingborough Council, was required under the provisions of the Land Use Planning and Approvals Act 1993. If an application had been made for a permit, then under the terms of the applicable planning scheme the Council would have been obliged to grant one. No application was made.

3             A Council officer drew the attention of the operators of the mobile coffee cart to the need for a permit. They obtained some unfortunate legal advice and did not apply for a permit. They were prosecuted. They defended the case. They were convicted and fined. They moved for the review of the magistrate's decision. They were unsuccessful. The motion to review was dismissed.[1] They appealed to the Full Court. The Full Court appeal was unsuccessful. It was dismissed.[2] The Council has now applied for the usual order for costs.

[1] Gamble v Kingborough Council [2020] TASSC 12.

[2] Gamble v Kingborough Council [2020] TASFC 7.

4 The power to award costs is conferred by s 125 of the Justices Act 1959. It gives this Court an unfettered discretion to make orders for costs, not just in respect of the Supreme Court proceedings, but also in respect of the proceedings in the Magistrates Court. No application has been made for the costs of the Magistrates Court proceedings.

5             This is a matter in the civil jurisdiction of the Court, not the criminal jurisdiction. Although the Supreme Court Civil Procedure Act 1932 and the Supreme Court Rules 2000 do not apply, the ordinary principles applicable to civil proceedings apply. This is a civil proceeding analogous to a proceeding for a prerogative writ in respect of a magistrate's decision. It is a proceeding in the supervisory jurisdiction of the Court. That is to say, it is in that part of the civil jurisdiction of the Court that relates to the supervision of inferior courts and tribunals.

6 Because the Full Court appeal was a proceeding of that nature, and because s 125 confers an unfettered discretion as to costs, the ordinary rule in civil proceedings applies. That is to say, the costs should follow the event, unless there is some reason for the Court to adopt a different course. The unsuccessful party should pay the successful party's costs, unless there is some reason for that not to be ordered.

7 Dr Davidson, for the appellants, has made a number of submissions as to why the usual order for costs should not be made. First, he argued to the effect that these were criminal proceedings and that there would be some sort of anomaly if costs were awarded in respect of the proceedings. I disagree. This is not a criminal proceeding and, in any event, the jurisdiction as to costs is an unfettered one by virtue of s 125. Green CJ noted in McAra v Evans (No 2) 38/1977, [1997] Tas SR 135, NC 12, that there

2   No 8/2020

was an intentional anomaly in relation to this Court having power to order the costs of the proceedings in the court of summary jurisdiction. But there is no such anomaly in relation to the application for the costs of the proceedings before the Full Court.

8             Dr Davidson relied on the decision of the High Court in Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273. But that case concerned the significance of Australia's international law obligations in the exercise of discretions by administrative decision-makers. This case had nothing to do with the human rights of the appellants.

9             Dr Davidson made a submission to the effect that an order for costs would amount to a second penalty, in addition to the fines imposed by the magistrate. But an order for costs is not in the nature of a penalty. An order for costs is an order whereby one party, usually the successful party, is compensated for legal costs which it has incurred. An order for costs is very different from the imposition of a fine that is required to be paid into consolidated revenue, or even into the funds of a local authority.

10           Dr Davidson argued that the prosecution was ill-founded, and that, but for some unfortunate concessions by the legal practitioner who represented his clients before the magistrate, it would not have succeeded. I am not sure that that can be said because it was not necessary to look more closely at the strength of the Council's case in the light of the concessions that were made. The answer to that point is, that by the time the appellants came to this Court, they were bound by the concessions that their then counsel had made before the magistrate, and the appeal to this Court was one that was bound to fail, in part because of those concessions.

11           Dr Davidson also developed a submission to the effect that costs should not be ordered because, at an early stage when approaches were made to the Council about permission for the operation of the coffee cart, the appellants were not advised of the need for a planning permit. That may be something that was relevant to penalty in the Magistrates Court, but the degree of helpfulness, or unhelpfulness, of Council officers at that early stage is of no significance in relation to the conduct of the Full Court proceedings. There was a Council officer who acquainted the appellants with the need for a planning permit prior to the institution of any court proceedings, and it makes no difference at all whether that advice was timely or a bit late. It was before the institution of any court proceedings.

12           In my view there is no reason why the ordinary rule as to costs should be departed from. The final submission from Dr Davidson was that the order for costs should be made against the first three appellants and not the fourth. Counsel for the Council is content with an order against only those three parties, and therefore that is the order that I would make.

13   I would order that the first, second and third appellants pay the costs of the respondent of and

incidental to the appeal.

3   No 8/2020

Serial No 8/2020

File No 1114/2020

ANTHONY PAUL GAMBLE, DEBORAH ANNE GAMBLE (nee WATSON),

SHELLEY ADRIANA SLAGHUIS and RITCHIE PAINE

v KINGBOROUGH COUNCIL (NO 2)

REASONS FOR JUDGMENT	FULL COURT
(DELIVERED ORALLY)	BRETT J 12 November 2020

14   I agree with the Chief Justice and agree with the order proposed by him.

4   No 8/2020

Serial No 8/2020

File No 1114/2020

ANTHONY PAUL GAMBLE, DEBORAH ANNE GAMBLE (nee WATSON),

SHELLEY ADRIANA SLAGHUIS and RITCHIE PAINE

v KINGBOROUGH COUNCIL (NO 2)

REASONS FOR JUDGMENT	FULL COURT
(DELIVERED ORALLY)	GEASON J 12 November 2020

15   I also agree with the order proposed by the Chief Justice, for the reasons given by his Honour.