McKay v Commissioner of Main Roads
[2013] WASCA 135 (S)
•29 JULY 2013
MCKAY -v- COMMISSIONER OF MAIN ROADS [2013] WASCA 135 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 135 (S) | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:115/2011 | ON THE PAPERS | |
| Coram: | MARTIN CJ BUSS JA MURPHY JA | 29/07/13 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | CACV 115 of 2011 Orders of primary judge set aside Matter remitted to primary judge for retrial on limited issues No order as to costs of the appeal CACV 159 of 2011 Appeal dismissed No order as to costs | ||
| B | |||
| PDF Version |
| Parties: | RODERICK DOUGLAS MCKAY KATHLEEN GLENYS MCKAY COMMISSIONER OF MAIN ROADS WESTERN AUSTRALIAN PLANNING COMMISSION |
Catchwords: | Practice and procedure Costs Whether court should award costs on an issue by issue basis Turns on own facts |
Legislation: | Rules of the Supreme Court 1971 (WA), O 66 r 1 |
Case References: | Bowen v Alsanto Nominees Pty Ltd [2011] WASCA 39 (S) McKay v Commissioner of Main Roads [2013] WASCA 135 Re The Minister for Immigration and Ethic Affairs of the Commonwealth of Australia; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622 Souter v Condor Developments Pty Ltd [2012] WASCA 227 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MCKAY -v- COMMISSIONER OF MAIN ROADS [2013] WASCA 135 (S) CORAM : MARTIN CJ
- BUSS JA
MURPHY JA
- CACV 159 of 2011
- KATHLEEN GLENYS MCKAY
Appellants
AND
COMMISSIONER OF MAIN ROADS
First Respondent
WESTERN AUSTRALIAN PLANNING COMMISSION
Second Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : BEECH J
Citation : McKAY -v- COMMISSIONER OF MAIN ROADS [No 7] [2011] WASC 223
File No : CIV 1558 of 2007
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : BEECH J
Citation : McKAY -v- COMMISSIONER OF MAIN ROADS [No 7] [2011] WASC 223 (S)
File No : CIV 1558 of 2007
Catchwords:
Practice and procedure - Costs - Whether court should award costs on an issue by issue basis - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA), O 66 r 1
Result:
CACV 115 of 2011
Orders of primary judge set aside
Matter remitted to primary judge for retrial on limited issues
No order as to costs of the appeal
CACV 159 of 2011
Appeal dismissed
No order as to costs
Category: B
Representation:
Counsel:
Appellants : Mr P G McGowan & Mr T Houweling
First Respondent : Mr K M Pettit SC & Ms F B Seaward
Second Respondent : Mr K M Pettit SC & Ms F B Seaward
Solicitors:
Appellants : Cornerstone Legal
First Respondent : State Solicitor for Western Australia
Second Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Bowen v Alsanto Nominees Pty Ltd [2011] WASCA 39 (S)
McKay v Commissioner of Main Roads [2013] WASCA 135
Re The Minister for Immigration and Ethic Affairs of the Commonwealth of Australia; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622
Souter v Condor Developments Pty Ltd [2012] WASCA 227
1 REASONS OF THE COURT: These supplementary reasons deal with the final orders to be made in these appeals following the delivery of the court's reasons for judgment on 31 May 2013: McKay v Commissioner of Main Roads [2013] WASCA 135.
Appeal CACV 115 of 2011
2 In this appeal the appellants raised in substance 19 grounds of appeal for determination (the nineteenth was a proposed ground the subject of an application to amend). They succeeded on three of these. The respondents filed a notice of contention with which the court found it unnecessary to deal. The respondents also made an application within the appeal to adduce further evidence. That application was dismissed.
3 The parties agree that the orders of the primary judge should be set aside and that the matter be remitted in accordance with this court's reasons in McKay v Commissioner of Main Roads [367] - [368]. The appellants seek, however, an order that this court direct a mediation before remittal. No doubt mediation may well be appropriate before a retrial on the limited issues, but that is a matter for the trial judge to determine and manage, and not for this court to order.
4 On the question of costs, the appellants seek an order that the respondents pay 50% of the costs of the appeal, alternatively that there be no order as to costs.
5 The respondents seek orders to the effect that:
• the respondents pay the appellants' costs of the three grounds upon which the appellants succeeded;
• the appellants pay the respondents' costs in respect of the remaining grounds of the appeal;
• the appellants pay to the respondents the costs of the application with respect to proposed ground 19;
• there be no order as to costs with respect to the notice of contention and the respondents' failed application to adduce further evidence in the appeal.
6 The appellants argue that the appeal was divisible into two broad areas, the valuation grounds of appeal and the planning grounds of appeal. They say they succeeded on three of the valuation grounds and even though they did not succeed on all the valuation grounds, the substratum of the issues in the grounds on which they were successful permeated all or most of the other valuation grounds in any event. The appellants acknowledge that they were wholly unsuccessful in relation to the planning grounds. The appellants contend that, in the broad, they should receive half of the costs of the appeal.
7 The respondents contend that in practical terms they were the successful party in that they succeeded on 15 of the 18 grounds and succeeded in resisting the proposed 19th ground, and that they were also successful in resisting the substantial retrial sought by the appellants. Alternatively if the appellants were to be regarded as the successful party, they say the court may and should order the appellants to pay the costs of all the issues upon which the appellants lost. In this regard they refer to O 66 r 1(3) of the Rules of the Supreme Court 1971 (WA) which provides:
Where a party though generally successful in an action has, by the introduction of some issue or issues on which he has failed, increased the costs the Court may order such party to pay the costs of such issue or issues.
8 The respondents in this regard also referred to the principles outlined in Bowen v Alsanto Nominees Pty Ltd [2011] WASCA 39 (S) [6] and Souter v Condor Developments Pty Ltd [2012] WASCA 227. In the latter case Newnes JA (Buss & Murphy JJA agreeing) said [27] - [30]:
It is trite law that the court has a very wide discretion as to costs, albeit it is a discretion to be exercised judicially. The general rule is that a successful party is entitled to an order for costs: O 66 r 1(1), Rules of the Supreme Court 1971 (WA). There are, however, two well-established exceptions to that rule to which it is necessary to refer.
First, where a party, although generally successful, has failed on some issue or issues which increased the costs of the action, the court may order the party to pay the costs of those issues: O 66 r 1(3). But that is a power to be exercised with caution and not as a matter of course. While parties should be encouraged to litigate only those matters which are properly and reasonably in issue, parties should not be dissuaded by the risks of an adverse costs order from canvassing all issues which might be material to the proper determination of a case: Keet v Ward [18]. Moreover, any practice of determining costs on the basis of a painstaking analysis of which party won on which issue would simply add to the time, costs and uncertainty of litigation: see Bowen v Alsanto Nominees Pty Ltd [2011] WASCA 39 (S) [6]. Such an approach may also fail to do justice in cases where the issues were intertwined or overlapped, or there was only one substantive issue. The exercise of the power to adjust an order for costs by reference to particular issues upon which an otherwise successful party has failed will ordinarily be appropriate only where the party has failed on discrete and severable issues which have added to the costs of the action in a significant and readily discernible way: Amaca Pty Ltd (formerly James Hardie & Co Pty Ltd) v Hannell [2007] WASCA 158 (S) [7].
Where the court considers that an order as to costs should reflect the failure of the successful party on some issues in the action, the better approach will often be to award the successful party a proportion of its costs, or to make no order as to costs, rather than attempt to award costs to the respective parties on an issue by issue basis: Phillips Fox (A Firm) v Westgold Resources NL [2000] WASCA 85 [28]. Where a party is awarded only a proportion of its costs, the exercise of discretion involved will inevitably be more a matter of art than science, depending upon matters of impression and evaluation, and mathematical precision will be illusory: Amaca [6]; Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261, 272.
Secondly, where a plaintiff pleads two or more causes of action but succeeds on only some of those causes of action, the general rule is that the plaintiff is entitled to costs on the causes of action on which it was successful and the defendant is entitled to costs on the causes of action on which it was successful, as if separate actions had been brought: O 66 r 2(a). Again, and for similar reasons, an order of that kind is not to be made as a matter of course. It is necessary for the court to look at the realities of the case and attempt to do substantial justice in the particular circumstances. In some cases, while it might be strictly correct to say there are different causes of action involved, there may have been only one contest in substance. That will often be so where all causes of action arise out of the one course of dealings, the one transaction, or the same facts, in which case there would usually be one order for the general costs of the action, moulded as necessary to ensure that substantial justice is done: Permanent Building Society v Wheeler [No 2] (1993) 10 WAR 569, 574 - 575; Keet v Ward [24]
9 In support of their application for costs, the respondents emphasise the limited extent to which the appellants succeeded in the appeal, they contend that on the natural justice point on which the appellants succeeded the appellants were at least equally responsible for failing to adduce the relevant material to enable the primary judge to determine the points in issue, and they contend there was no real overlap between the three valuation grounds on which the appellants succeeded and the other three. The respondents also draw attention to the following findings of this court in relation to the grounds upon which the appellants failed:
• in ground 4(b) the primary judge did have regard to the things alleged by the appellants to have been overlooked [87];
• in ground 6 the appellants did not even attempt to dislodge findings necessary for success on the appeal [113], [116];
• ground 7(a) was not a proper ground of appeal [183];
• in ground 7(b) the primary judge did not make the finding complained of [187];
• ground 15 was not a proper ground of appeal [205];
• in ground 16 the appellants' contentions were a veneer for another submission to the effect that the judge erred because he preferred the evidence of the respondents' planners [256];
• in ground 17 the appellants alleged errors without addressing the relevant findings and reasons of the primary judge [277], [286];
• in relation to ground 18, there was no merit in the appellants' contention that the findings of fact made by the primary judge would not sustain the ultimate inference drawn, and the alleged error of fact, even if established, would not have affected the ultimate findings of the judge [316], [326].
10 The respondents also contend that there should be no informal 'set off' between the respondents' failed application to adduce evidence on the appeal and the appellants' failed application to introduce ground 19 as an additional ground in the appeal. The respondents contend that the latter application was much more substantial than the former and involved much greater cost.
11 Having considered the respective contentions of the parties, the following matters appear to be the most significant. In substance the appellants succeeded in overturning the primary judge's decision, albeit that they did not succeed in obtaining the full retrial which they had sought. The remitter will be confined to a number of specific, although important, matters. In relation to the three valuation grounds upon which the appellants succeeded, it is the case that the substratum of issues involved in the examination of those grounds permeated the other grounds save, to some extent, ground 6 (Baldivis sales). The valuation issues occupied over 50% of the hearing time in the appeal. On the other hand the planning grounds introduced numerous issues which increased the costs of the appeal upon which the appellants failed. Many, if not most, lacked any real arguable prospect of success.
12 Taking everything into consideration, this is one of those cases where 'the better approach [is] … to make no order as to costs, rather than attempt to award costs to the respective parties on an issue by issue basis' (Souter v Condor [29]).
13 Accordingly, the following orders should be made:
1. The orders made by Beech J on 2 December 2011 in Supreme Court CIV 1558 of 2007 be set aside.
2. The matter be remitted to the trial judge for a new trial in accordance with this court's reasons for judgment dated 31 May 2013, in particular [367] and [368] of the court's reasons.
3. There be no order as to costs in relation to the appeal.
CACV 159 of 2011
14 This was a separate appeal commenced by the appellants solely on the question of the costs of the proceedings below. The appellants commenced this as a separate appeal even though, if they were successful (as was the case) in relation to setting aside the primary judge's orders in appeal CACV 115 of 2011, the primary judge's costs orders would be expected to be discharged in any event. The respondents do not contend, however, that the appellants acted unreasonably in commencing this separate appeal.
15 The appellants seek an order that the respondents pay the costs of this appeal. The respondents submit that as this appeal was not dealt with on its merits, the proper order is that there be no order as to costs. They refer in this regard to Re The Minister for Immigration and Ethic Affairs of the Commonwealth of Australia; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622, where McHugh J said:
If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings (625).
16 In all the circumstances of this case, there should be no order as to costs. Accordingly, the orders should be:
1. The appeal be dismissed.
2. There should be no order as to costs.
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