Mirboo Ridge v Minister for Resources (costs) - [2018] VSC 668

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT
COMMERCIAL LIST

S ECI 2016 001288

MIRBOO RIDGE PTY LTD (ACN 060 663 934) AND OTHERS	Plaintiffs
v
MINISTER FOR RESOURCES	Defendant

---

JUDGE:	MACAULAY J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers (submissions filed 10, 22, 31 October 2018)
DATE OF JUDGMENT:	7 November 2018
CASE MAY BE CITED AS:	Mirboo Ridge & Ors v Minister for Resources (costs)
MEDIUM NEUTRAL CITATION:	[2018] VSC 668

---

COSTS – Exercise of discretion as to costs – Departure from normal rule that costs follow the event – Separate and discrete issues at trial – Plaintiffs successful on one claim but unsuccessful on others – Relative importance and complexity of claims – Apportionment of costs – Applicable principles – Whether cost entitlement broadly equivalent – Supreme Court (General Civil Procedure Rules) 2015 Rule 63.04 – ASIC v Flugge (No 2) (2017) 342 ALR 478, Chen v Chan [2009] VSCA 233 and McFadzean v Construction Mining and Energy Union (2007) 20 VR 250 applied – Order that plaintiffs pay 50 per cent of defendant’s costs.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Sullivan QC with Mr S Free	Piper Alderman
For the Defendant	Mr P Gray QC with Ms C van Proctor	Victorian Government Solicitor’s Office

HIS HONOUR:

At the conclusion of the trial of this proceeding I made orders quashing each of the purported decisions of the Minister’s delegate made on 21 December 2017 varying the conditions of the Mirboo Permits and the Petro Tech Authorities, but otherwise dismissing the proceeding. As to costs, I made directions requiring each party to file and serve short written submissions. Those written submissions have now been exchanged and filed.

In short, the Minister seeks orders that:

(a) the plaintiffs pay the Minister’s costs of the proceeding (including the costs of proceeding S CI 2016 04381 which were incorporated by consent as costs in the cause within this proceeding) except in relation to the costs of what has been described as ‘the variation claim’; and

(b) the Minister pay the plaintiffs’ costs of the variation claim.

The plaintiffs, on the other hand, seek an order that each party bear their own costs of the whole proceeding, including the incorporated costs of proceeding S CI 2016 04381.

It is not disputed that there were three principal issues agitated at trial — the administrative moratorium claim, the statutory moratorium claim, and the variation claim. It is also not disputed that the costs associated with the earlier proceeding, S CI 2016 04381, are appropriately treated as forming part of the ‘administrative moratorium claim’.

Nor are the applicable legal principles in dispute. Relevantly, they are:

(a) As a general rule, costs should follow the event, and a successful party should obtain all of the costs of the proceeding even if it fails to establish some of the alternative heads of its claim (or defence).[1] However, where there is a multiplicity of issues and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mirboo Ridge v Minister for Resources (costs)

Details

AGLC: Mirboo Ridge v Minister for Resources (costs) [2018] VSC 668
Case: [2018] VSC 668
Decision Date: 7 November 2018

CaseChat Overview and Summary

The case of Mirboo Ridge against the Minister for Resources revolved around a dispute concerning costs incurred in the proceedings. The plaintiffs, Mirboo Ridge, were successful in one of their claims but unsuccessful on others. The matter was heard in the Supreme Court of Australia, where the primary focus was on the appropriate allocation of costs given the mixed outcomes of the litigation. The court was tasked with determining whether the costs should follow the usual rule of the event, or if a different approach was warranted given the unique circumstances of the case.

The legal issues central to the decision involved the principles and criteria for exercising discretion in the allocation of costs when the outcomes of the claims are mixed. The court had to consider the relative importance and complexity of the separate claims, and whether the costs incurred by the parties were broadly equivalent. The court referred to established authorities such as ASIC v Flugge (No 2), Chen v Chan, and McFadzean v Construction Mining and Energy Union to guide its analysis. The key question was whether the plaintiffs should bear a proportion of the defendant's costs despite their partial success.

The court concluded that the circumstances justified a departure from the usual rule that costs follow the event. Given the mixed outcomes of the claims and the varying degrees of success and failure, the court found that it was appropriate to apportion the costs. The court held that the relative importance and complexity of the claims, along with the overall outcome, warranted an order that the plaintiffs pay 50 per cent of the defendant's costs. This decision reflected a balanced approach, taking into account the mixed nature of the litigation and the need to fairly allocate the costs incurred by both parties.

The final orders of the court mandated that the plaintiffs, Mirboo Ridge, pay 50 per cent of the defendant's costs. This outcome was reached after careful consideration of the principles and authorities guiding the discretion in costs allocation, ensuring that the order was just and equitable in the context of the mixed success of the claims.

Orders