Glenorchy City Council v Wiertek (No 2) - [2019] TASSC 4

[2019] TASSC 4

COURT: SUPREME COURT OF TASMANIA

CITATION: Glenorchy City Council v Wiertek (No 2) [2019] TASSC 4

PARTIES:  GLENORCHY CITY COUNCIL
  v
  WIERTEK, Nastassija

FILE NO:  2075/2018
DELIVERED ON:  12 February 2019
DELIVERED AT:  Hobart
HEARING DATE:  5 December 2018
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Procedure – Costs – General rule: costs follow event – Partial success – Appeal from magistrate – Short hearing.

Bowen v Alsanto Nominees Pty Ltd [2011] WASCA 39(S), referred to.
Aust Dig Procedure [1484]

REPRESENTATION:

Counsel:
           Appellant:  T Cox
           Respondent:  G O'Rafferty
Solicitors:
           Appellant:  Simmons Wolfhagen
           Respondent:  Leonard Fernandez

Judgment Number: [2019] TASSC 4
Number of paragraphs: 12

Serial No 4/2019
File No 2075/2018

GLENORCHY CITY COUNCIL v NASTASSIJA WIERTEK

REASONS FOR JUDGMENT BLOW CJ

12 February 2019

I allowed this appeal on 5 December last: Glenorchy City Council v Wiertek [2018] TASSC 59. The appellant was only partly successful. Each party has sought an order for costs against the other.
The appeal concerned an application by the Glenorchy City Council, the appellant, to the Magistrates Court of Tasmania, seeking orders pursuant to s 251(2) of the Building Act 2016 requiring the respondent to demolish a retaining wall, remove the demolished building materials, and reinstate the site. A magistrate held that the Magistrates Court did not have jurisdiction, and dismissed the application. The Council appealed, contending that the Magistrates Court did have jurisdiction and, in the alternative, if there was no jurisdiction, that the learned magistrate had erred by failing to comply with s 12 of the Magistrates Court (Civil Division) Act 1992. That section required him not to make any order dismissing the application without first advising the parties that they could apply to transfer the application to this Court, and then waiting 28 days. I held that the Magistrates Court had no jurisdiction, but that the learned magistrate had erred in dismissing the application without first complying with s 12.
The appellant's contentions are simple. It contends that, the appeal having succeeded, costs should follow the event as they ordinarily do, and the respondent should be ordered to pay its costs.
The respondent's position is more complicated. She has applied for an order that the appellant pay her costs in relation to the grounds of appeal relating to the jurisdiction of the Magistrates Court (grounds 1 and 2) on a solicitor/client basis, as well as an order that the appellant pay her costs of the proceedings in the Magistrates Court as to the jurisdiction issue, on an indemnity basis. She accepts that she must be ordered to pay the appellant's costs of the ground of appeal relating to s 12 (ground 3), but seeks an indemnity certificate under the Appeal Costs Fund Act 1968 as to any costs that she is ordered to pay.
In an appropriate case, it is open to a court to make an order that reflects the fact that different parties succeeded as to different issues: Forster v Farquhar [1893] 1 QB 564; Cretazzo v Lombardi (1975) 13 SASR 4; Hughes v Western Australian Cricket Association (Inc) [1986] ATPR ⁋408-748; Burnie Port Corporation Pty Ltd v Bank of Western Australia Ltd (No 3) [2003] TASSC 132, 12 Tas R 325; Marlow v Walsh (No 2) [2009] TASSC 40 at [22]; Partridge v Hobart City Council (No 2) [2013] TASFC 1 at [17].
More time was spent at the hearing of the appeal on submissions as to the jurisdictional issue than on submissions as to the s 12 issue. However the hearing of the appeal took only one hour.
The appellant was not in a strong position as to the jurisdictional issue. Section 251(1) of the Building Act permitted the making of an application "to a court of competent jurisdiction", but nothing in that Act expressly conferred jurisdiction on the Magistrates Court or, for that matter, any other court. The appellant made an appropriate concession to the effect that this Court was a court of competent jurisdiction for the purpose of s 251. Once that concession was made, it was very hard to sustain an argument that it was implicit that the Building Act conferred jurisdiction on the Magistrates Court. The appellant's arguments as to the jurisdiction issue were wrong. However they were not ridiculous.
In Bowen v Alsanto Nominees Pty Ltd [2011] WASCA 39(S) at [6]-[7], the Western Australian Court of Appeal (McLure P, Newnes and Murphy JJA) cautioned against too readily making an order for costs on an issue by issue basis, saying this:
"[6] The court may, in the exercise of its discretion, order that a successful party recover only a portion of its costs where that party has been unsuccessful in respect of certain discrete issues. But that should not be done as a matter of course. To embark as a general practice upon an analysis of which party was successful on each issue, or necessarily to deprive a successful party of some portion of its costs if it has lost on a particular issue, would be likely to add further uncertainty and complexity to the outcome of litigation, derogate from the prospect of settlement, and oblige the court to hear lengthy and frequent arguments in relation to costs as an additional burden on its resources and the costs of the parties … Litigation is time-consuming, expensive and burdensome enough already.
[7] In addition, while parties should be encouraged to consider carefully what matters they put in issue, justice may not be served if by too ready a resort to deciding questions of costs according to success on particular issues, parties are dissuaded by the risks of costs from canvassing all issues which might be material to the decision in the case." [Case references omitted.]
The respondent relied upon a letter written by her solicitor to the appellant's solicitors in March 2018 in which it was asserted that the application to the Magistrates Court was misconceived, and possibly incompetent, for various reasons, including the fact that it was not clear that the Magistrates Court was a court of competent jurisdiction for the purposes of s 251. The respondent's solicitor did not propose a compromise in that letter, but invited the Council to withdraw its application and pay the respondent's costs. I do not regard that letter as significant for the purposes of the costs applications now before me. It suggested only a possibility that the Magistrates Court was not a court of competent jurisdiction, and did not come to grips with the reasons why it had no jurisdiction.
This was not an expensive appeal or a complicated one. Since the appeal succeeded because of an error on the part of the learned magistrate, and since the respondent did not lead the magistrate into error in any way, it is appropriate that I grant the respondent an indemnity certificate under the Appeal Costs Fund Act. It is likely that the granting of that certificate will result in the respondent recovering the bulk of her costs.
I do not think it is appropriate for me to make any order as to the costs of the proceedings in the Magistrates Court because those proceedings, so far as I know, are still pending in that court.
Having regard to all these circumstances, I am not persuaded that I should depart from the general principle that costs follow the event. I have therefore decided to order that the respondent pay the appellant's costs of and incidental to the appeal, and that an indemnity certificate be granted to the respondent pursuant to the Appeal Costs Fund Act. The respondent's application is refused.