Hall v City of Burnside (No 2)

[2022] SASCA 67

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Civil)

HALL v CITY OF BURNSIDE & ANOR (No 2)

[2022] SASCA 67

Judgment of the Court of Appeal  

(The Honourable Justice Bleby, the Honourable Justice David and the Honourable Justice Blue)

15 July 2022

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - GENERAL RULE: COSTS FOLLOW EVENT - GENERAL PRINCIPLES AND EXERCISE OF DISCRETION

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - GENERAL RULE: COSTS FOLLOW EVENT - PARTIAL SUCCESS

Application for costs.

On 28 April 2022, the Court of Appeal dismissed an appeal brought by the appellant against a decision of the Environment, Resources and Development Court, dismissing the appellant’s appeal against the grant by the Council Assessment Panel of the City of Burnside of a development plan consent for works done in the Adelaide Face Zone.

The first respondent did not actively participate in the appeal and does not seek an order for costs. The second respondent applies for costs in accordance with the ordinary principal that costs follow the event. The appellant contends that there should be no order as to costs, or, in the alternative, an award of costs against him should be significantly less than 50 per cent.

Held (by the Court):

1.The appellant was successful in his contention on certain issues. However, that success was not reflected in the outcome. It is appropriate to take a broad-axe approach that reflects the significance of those issues, but nonetheless recognises the second respondent’s ultimate success on the appeal. The appellant is to pay 60 per cent of the second respondent’s costs, to be agreed or taxed.

Development Act 1993 (SA) s 33(3), referred to.
Ruddock v Vardalis (No 2) (2001) 115 FCR 229; Hall v City of Burnside [2022] SASCA 39; Hall v City of Burnside & Anor [2021] SAERDC 12; Crown Marina Pty Ltd v City of Port Adelaide Enfield & Anor (No 2) [2010] SASC 121; Latoudis v Casey (1990) 170 CLR 534; Bell v Deputy Coroner of South Australia (No 2) [2020] SASC 77, considered.

HALL v CITY OF BURNSIDE & ANOR (No 2)
[2022] SASCA 67

Court of Appeal – Civil: Bleby, David JJA and Blue AJA

1. THE COURT:         On 28 April 2022, this Court dismissed an appeal brought by the appellant against a decision of the Environment, Resources and Development Court (‘ERD Court’).[1] The ERD Court had dismissed the appellant’s appeal against the grant by the Council Assessment Panel of the City of Burnside of a development plan consent. That consent was for construction of a split-level detached dwelling with associated works in the Hills Face Zone (‘HFZ’) under the Burnside (City) Development Plan.[2]

   [1]     Hall v City of Burnside [2022] SASCA 39.

   [2]     Hall v City of Burnside & Anor [2021] SAERDC 12.

2. The issues before this Court were broadly dealt with in five grounds, three of which related to the ‘merits assessment’, with the remaining two relating to the ‘validity of reservations’. On the issues raised with respect to the merits assessment, the Court held by majority that the ERD Court had not misconstrued the Development Plan by giving primacy to residential development and minimising driveway length and cut and fill, rather than preserving, enhancing and assisting in re-establishing the natural character of the zone.[3] It also held that the ERD Court had not erred in its approach to the evidence relating to, and assessment of, the visibility of the proposed dwelling from the walking trail,[4] nor in its approach to the assessment of the visibility of the proposed dwelling from the Adelaide Plains.[5]

   [3]     Hall v City of Burnside [2022] SASCA 39 at [25] (Bleby JA, David JA agreeing), Blue AJA dissented at [161].

   [4]     Hall v City of Burnside [2022] SASCA 39 at [39]-[43] (Bleby JA, David JA agreeing), Blue AJA dissented at [171].

   [5]     Hall v City of Burnside [2022] SASCA 39 at [57] (Bleby JA, David JA agreeing), Blue AJA dissented at [181].

3. Next, the Court considered the grounds relating to the validity of colour and landscaping reservations. While this Court was unanimous in holding that the ERD Court had erred in finding that those reservations were valid reservations under s 33(3) of the Development Act 1993 (SA), a majority held that those errors did not affect the ERD Court’s exercise of its planning judgment.[6]

   [6]     Hall v City of Burnside [2022] SASCA 39 at [73].

4. Having dismissed the appeal, the Court invited parties to make written submissions relating to costs. The first respondent did not actively participate in the appeal and does not seek an order for costs. The second respondent applies for costs in accordance with the ordinary principal that costs follow the event. The appellant contends that there should be no order as to costs, or, in the alternative, an award of costs against him should be significantly less than 50 per cent.

5. In essence, the appellant submits that the issues on appeal are of general public importance; that the appeal has emanated from the ERD Court, which is a no costs jurisdiction; and that he has succeeded in part of his claim.

6. In Ruddock v Vardalis (No 2),[7] Black CJ and French J summarised the principles relating to costs as follows:

   Within the general discretion of the courts to award costs it is accepted by decisions in both Australian and English jurisdictions that:

   ·Ordinarily costs follow the event and a successful litigant receives costs in the absence of special circumstances justifying some other order.

   ·Where a litigant has succeeded only upon a portion of the claim, the circumstances may make it reasonable that the litigant bear the expense of litigating that portion upon which he or she has failed.

   ·A successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other parties' costs of them. In this sense “issue” does not mean a precise issue in the technical pleading sense but any disputed question of fact or law.

   See Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748 at 48,136; approved by the Full Court in Queensland Wire Industries Pty Ltd v Broken Hill Pty Co Ltd (1987) 17 FCR 211 at 222.

   [7] (2001) 115 FCR 229 at [11].

7. A claim of public interest cannot be safely established in the present case. The appellant has acknowledged that the ‘public interest’ he invokes aligns with his personal interests. Further, that the ERD Court is a no costs jurisdiction does not bear on the discretion of this Court on appeal.[8]

   [8]     Crown Marina Pty Ltd v City of Port Adelaide Enfield & Anor(No 2) [2010] SASC 121 at [13].

8. However, the appellant was successful in his contention that the reservations were invalid. That success was not reflected in the outcome. Nonetheless, the validity of the reservations was fully argued on the appeal. The appellant’s success on that issue, secondary as it was to the issue of the ERD Court’s merits assessment, should be reflected in the costs order.[9]

   [9]     Latoudis v Casey (1990) 170 CLR 534 at 568 (McHugh J).

9. Rather than order that the appellant pay a proportion of the second respondent’s costs of action and the second respondent pay a proportion of the appellant’s costs of action, it is appropriate to take a broad-axe approach[10] that reflects the significance of the issue of the validity of the reservations, but nonetheless recognises the second respondent’s ultimate success on the appeal. Taking that approach, we order that the appellant pay 60 per cent of the second respondent’s costs, to be agreed or taxed.

   [10]   See, e.g., Bell v Deputy Coroner of South Australia (No 2) [2020] SASC 77 at [41] (Blue J).