Hill v The Council of the Law Society of the Act (No 2)
[2020] ACTCA 13
•17 March 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Hill v The Council of the Law Society of the ACT (No 2) |
Citation: | [2020] ACTCA 13 |
Hearing Date: | On the Papers |
DecisionDate: | 17 March 2020 |
Before: | Mossop, Loukas-Karlsson JJ & Crowe AJ |
Decision: | See [17] |
Catchwords: | COSTS –– APPLICATION FOR COSTS – Appellant seeks that his costs of the hearing and the appeal be paid by the respondent – whether appropriate to make costs order in favour of the appellant where he had success on some issues but the appeal was ultimately dismissed – need for some good reason to be shown for the court to deprive a successful party of costs – no such reason – appellant to pay the respondent’s costs of the appeal and the cross-appeal |
Legislation Cited: | Court Procedure Rules 2006 (ACT), rr 1163, 1721 Legal Profession Act 2006 (ACT) Supreme Court Act 1933 (ACT), s 36J |
Cases Cited: | Builders’ Licensing Board v Inglis (1985) 1 NSWLR 592 Racing Club Inc v Planning and Land Authority of the Australian Capital Territory [No 2] [2018] ACTSC 80 Nelipa v Dr Robertson and Commonwealth of Australia [2009] ACTSC 16 |
Parties: | Alan Richard Hill (Appellant) The Council of the Law Society of the ACT (Respondent) |
Representation: | Counsel Written Submissions prepared by N Kuster (Appellant) Written Submissions prepared by D Moujalli (Respondent) |
| Solicitors Nelson & Co (Appellant) McInnes Wilson Lawyers (Respondent) | |
File Number: | ACTCA 15 of 2019 |
Decision under appeal: | Court/Tribunal: Supreme Court of the ACT Before: Burns J Date of Decision: 27 March 2019 Case Title: Hill v The Council of the Law Society of the ACT Citation: [2019] ACTSC 79 |
THE COURT:
On 31 January 2020, this Court dismissed the appellant’s appeal against the judgment of the primary judge delivered on 27 March 2019. That outcome meant that it was not necessary to deal with the respondent’s cross-appeal. Accordingly, the respondent’s cross-appeal was also dismissed. By Order 2 made on 31 January 2020, the appellant was ordered to pay the costs of the appeal and the cross-appeal. However, that order was stayed to allow the parties to make submissions on costs if they wished. Both parties have now made submissions as to what costs orders should be made. In that context, Crowe AJ, pursuant to s 36J(1) of the Supreme Court Act 1933 (ACT), ordered on 19 February 2020, that Order 2 made on 31 January 2020 not be entered until further order.
Submissions of the Appellant
The appellant argued that he had succeeded in the first three grounds of appeal which related to the issue of statutory interpretation. The appellant submitted that he only failed in the appeal because of the Court’s conclusion that he had not discharged the onus of establishing that the instruments of appointment were defective. The appellant noted that neither party had made submissions in the appeal as to where the onus lay.
The appellant relied on the following passage from the judgment in EMI Songs Australia Pty Ltd v Larrikin Music Publishing Pty Ltd [2011] FCAFC 92 at 9:
The discretion is broad but is to be exercised judicially. The fundamental purpose of the discretion is to compensate the successful party, not to punish the unsuccessful party. The furtherance of the goal of compensation means that, in general, a successful party will obtain an order for costs in its favour (Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [65]-[68]). However, “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 party’s costs of them...” (Hughes v Western Australian Cricket Association (Inc) [1986] FCA 382; (1986) ATPR 40-748 at 48,136). If apportionment of costs is appropriate, the object is not mathematical precision (Dodds Family Investments Pty Ltd (formerly Solar Tint Pty Ltd) v Lane Industries Pty Ltd [1993] FCA 259; (1993) 26 IPR 261 at 272) but a result that best reflects the interests of justice in the overall circumstances of the case.
The appellant also relied on what Murrell CJ said in Canberra GreyhoundRacing Club Inc v Planning and Land Authority of the Australian Capital Territory [No 2] [2018] ACTSC 80 (Canberra Greyhound).
In the submission of the appellant, the appropriate order as to costs is that the respondent should pay the appellant’s costs of the hearing and the appeal. His fall-back position is that each party should bear their own costs.
Submissions of the Respondent
The respondent pointed out that the appellant was wholly unsuccessful in obtaining any of the relief sought in either the Amended Originating Application before the primary judge or the Notice of Appeal before this Court. The respondent has been brought to court and forced to incur costs in opposing the proceeding before the primary judge and the appeal.
The respondent relied on the comments of McHugh J in Latoudis v Casey [1990] HCA 59; 170 CLR 534 (Latoudis) at 567:
The rationale of the order is that it is just and reasonable that the party who has caused the other party to incur the costs of litigation should reimburse that party for the liability incurred. The order is not made to punish the unsuccessful party. Its function is compensatory. Thus, in civil proceedings an order may, and usually will, be made even though the unsuccessful party has nearly succeeded or has acted reasonably in commencing the proceedings. It may, and usually will, be made even though the action has failed through no fault of the unsuccessful party.
The respondent submitted that the appellant demonstrated no good reason why the successful party should not recover its costs. Indeed, the argument which was ultimately accepted by the Court in relation to the validity of the instruments of appointment was that pleaded by the respondent in the Amended Notice of Contention.
The cross-appeal in practical terms added nothing to the appeal. It was dismissed only because of the failure of the appeal.
In relation to the onus issue, the respondent queries how that can be relevant to the issue of costs. In any event it is difficult to see how there could have been a need for submissions. It was the appellant who was advancing the case that the instruments of appointment were defective. He therefore bore the onus of proving it: see per Kirby P (as he then was) in Builders’ Licensing Board v Inglis (1985) 1 NSWLR 592 at 598.
The respondent argued that courts generally require compelling reason to deprive a successful defendant of costs. In Canberra Greyhound Murrell CJ observed that such an outcome will usually arise because of the unreasonable way in which the defendant conducted the litigation. Here, the appellant could not identify any such unreasonableness. It followed that the respondent should have their costs of the primary proceeding and the appeal (including the cross-appeal).
Consideration
The submissions of the respondent must be accepted. As McHugh J said in Latoudis it is not enough that the losing party has nearly succeeded, or has acted reasonably in pursuing the proceedings. There usually must be some good reason shown for the court to deprive a successful party of its costs, let alone to award costs against that party.
We accept that costs “following the event” is not a hard and fast rule. In Nelipa v Dr Robertson and Commonwealth of Australia [2009] ACTSC 16 Refshauge J reviewed the authorities bearing on the exercise of the costs discretion under rules 1163 and 1721 of the Court Procedure Rules 2006 (ACT) and said:
[85]From these decisions, I would distil the following principles. The discretion to order costs is a wide, unconfined discretion. It must be exercised judicially but is not confined by absolute rules such as that in the absence of disentitling conduct, a successful party is to be (partially) compensated by the unsuccessful party. Similarly, there is no absolute rule that the sole purpose of a costs order is to compensate one party at the expense of another.
[86]Nevertheless, ordinarily, the party who has created the litigation and failed in it will be required to meet the costs of the other party. Further, where there has been some delinquency on the part of a party, even the successful party, that may justify depriving that party of their costs or even requiring them to pay the other party’s costs.
[87]There will also be other reasons that are relevant to the decision as to which party should bear the costs of the other party. The range of such reasons should not be limited and will include the nature of the litigation (such as in Oshlack v Richmond River Council) the conduct of a party (Foots v Southern Cross Mine Management Pty Limited & Ors) or the involvement of a non-party (Knight & Anor v F P Special Assets Limited (1992) 174 CLR 178). See also Probiotec Ltd and Ors v University of Melbourne and Ors (2008) 166 FCR 30 at 42-4.
Here, the appellant relies upon a partial success in the appeal, in the sense that the appellant did succeed in arguing that the primary judge had not correctly interpreted the relevant sections of the Legal Profession Act 2006 (ACT). However, that partial success did not lead to success in the ultimate disposition of the appeal. The reason for that was the failure of the appellant to have established that, contrary to the inference to be drawn from the circumstances, and the contents of each instrument of appointment, there was in fact no agreed rate of remuneration between the Law Society of the ACT and each appointee at the time of appointment. There is no assertion that that failure was caused by any unreasonable conduct on the part of the respondent. In the circumstances we see very little force in the argument that the partial success of the appellant warrants a costs order other than that which would be usually made.
The appellant also relies upon the approach taken by Murrell CJ in the Canberra Greyhound case. The orders made by her Honour in that matter turned very much on the unusual circumstances of the case. At the hearing on 8 February 2018 (her Honour’s substantive judgment was delivered on 23 February 2018), the plaintiff club had succeeded in establishing the basis for discretionary relief, however on 28 November 2017 legislation was passed which made the granting of that relief futile. It was in that context, that her Honour ordered the successful defendant to pay the plaintiff’s costs up to 28 November 2017 with each party bearing its own costs thereafter.
We do not see any parallel between the circumstances of the Canberra Greyhound case and the circumstances here. The appropriate order here is that which the Court made as Order 2 on 31 January 2020.
Orders of the Court
The order of the Court is:
(1) The Order made by Crowe AJ on 19 February 2020 that Order 2 made on 31 January 2020 not be entered until further order be vacated.
| I certify that the preceding seventeen [17] numbered paragraphs are a true copy of the Reasons for Judgment of Mossop & Loukas-Karlsson JJ & Crowe AJ. Associate: Date: 17 March 2020 |
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