Skycity Adelaide Pty Ltd v Treasurer of South Australia & Anor (No 2) - [2024] SASCA 18

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
SKYCITY ADELAIDE PTY LTD v TREASURER OF SOUTH AUSTRALIA & ANOR (No 2)
[2024] SASCA 18
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Lovell and the Honourable Justice Bleby)
1 March 2024
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - OFFERS OF COMPROMISE, PAYMENTS INTO COURT AND SETTLEMENTS - OFFER OF COMPROMISE OR OFFER TO SETTLE OR CONSENT TO JUDGMENT PURSUANT TO RULES - OTHER MATTERS
When reasons were delivered in Skycity Adelaide Pty Ltd v Treasurer of South Australia & Anor [2024] SASCA 14, answering three questions on a Case Stated, the Court intimated that the appellant should pay 75 per cent of the respondent’s costs of the hearing before the Court of Appeal. The respondent agreed and an order to that effect was made.
Senior counsel for the appellant sought further time to consider his position and, if so advised, to put a written submission on costs. The Court acceded to that request.
Further submissions were received and considered by the Court. The appellant contended:
1.That 75 per cent of costs of the Case Stated could be attributed to issues raised by the first two questions, on which the respondent succeeded, and 25 per cent to the third question, on which the appellant succeeded.
2.Therefore, the appellant should pay 75 per cent of the respondent’s costs of the Case Stated and it should recover 25 per cent of its costs of the Case Stated. A setting-off of costs orders should result in the appellant paying 50 per cent of the respondent’s costs of the Case Stated.

Held (the Court): the order for costs should not be disturbed:
1.Parties ought not assume that they will necessarily be given an opportunity to address costs in writing after the delivery of reasons for judgment. In most cases, including this, the broad parameters of any costs dispute are likely to be clear and the Court expects the parties to be in a position to put submissions at the time reasons are delivered.
2.The first two questions were difficult and required very considerable time in written and oral argument. They dwarfed the time spent on the third question. The important questions, and the weight of this case, concerned the first two questions rather than the third.
3.Acknowledging that there is now a greater preparedness to awards costs by reference to issues, success on an issue by an otherwise unsuccessful appellant does not necessarily translate into an order that the appellant recover costs on that issue.
4.The allowance of 25 per cent is broad but reflects the parties’ relative successes on the questions agitated having regard to all of the circumstances of the Case Stated including the time spent and the relative importance of the questions agitated.

5. The appellant must pay the costs associated with the further submissions on costs.
Supreme Court Act 1935 (SA) s 40; Uniform Civil Rules 2020 (SA) r 211.5, Chapter 16, referred to.
Amaca Pty Ltd v Werfel (No 2) [2021] SASCFC 26; Cretazzo v Lombardi (1975) 13 SASR 4; Doerr v Gardiner (No 2) [2024] QCA 21; Holmes v Jefferis (No 2) [2022] SASCA 74, considered.

SKYCITY ADELAIDE PTY LTD v TREASURER OF SOUTH AUSTRALIA & ANOR (No 2)
[2024] SASCA 18
Court of Appeal – Civil: Livesey P, Lovell and Bleby JJA
THE COURT:
Introduction

On 22 February 2024, this Court delivered reasons in which two of the three questions on the case stated were answered in accord with the case of the respondent, and the third in accord with the case of the appellant.
The Court intimated that it was minded to ordering that the appellant pay 75 per cent of the respondent’s costs of the hearing before the Court of Appeal.
Senior counsel for the respondent indicated that an order in those terms was acceptable to the respondents. Whilst senior counsel for the appellant put no argument against the intimation and accepted that an order for costs should be made in the terms intimated, he sought further time to consider his position and, if so advised, to put a written submission on costs. The purpose of the submission was to persuade the Court to make a different costs order. The Court acceded to that request.
Those submissions have now been received and considered by the Court. For the following reasons, the order made in accordance with the intimation given by the Court will not be disturbed and the appellant must pay the costs of dealing with the question of costs before this Court.
Addressing costs when reasons are delivered
As has been pointed out, the parties ought not assume that they will necessarily be given an opportunity to address costs in writing after the delivery of reasons for judgment.
In most cases, including this, the broad parameters of any costs dispute are likely to be clear and the Court expects the parties to be in a position to put submissions at the time reasons are delivered:[1]
Whilst in some cases it may be understandable that the parties are not in a position to deal with costs at the time of judgment, perhaps until the reasons for judgment have been considered, in most cases the parties should attend the delivery of judgment ready and well equipped to address the necessary orders required of the court, together with any costs issues. That will extend to consequential costs issues in the court or courts below. The parties cannot expect to have further time to address issues which are often predictable and which can be narrowed by consultation between the parties before judgment is delivered.
[1] Holmes v Jefferis (No 2) [2022] SASCA 74, [5] (Livesey P, Doyle and Bleby JJA).
Indeed, in some jurisdictions, leave to argue the question of costs must usually be sought in the written outlines delivered before the appeal is heard, or at the hearing.[2]
[2] See, for example, Doerr v Gardiner (No 2) [2024] QCA 21, [29]-[31] (Bond JA) regarding the practice in the Queensland Court of Appeal.
In this case, the context for the argument about costs is that the first two questions were, as the reasons of this Court demonstrate, difficult and required very considerable time in written and oral argument. They dwarfed the time spent on the third question which, whilst involving some difficulty, was relatively much less complex.
However, and critically, the important questions, and the weight of this case, concerned the first two questions rather than the third.
The appellant’s costs submissions
Nonetheless, in brief written submissions, the appellant sought a different order, being that the appellant be ordered to pay 50 per cent of the respondent’s costs.
The appellant accepted that the proposed order was intended to address costs on a broad basis and that it reflected the relative costs referable to the three questions. The appellant submitted that 75 per cent of the costs of the Case Stated could be attributed to the issues raised by the first two questions and 25 per cent to the third. The appellant contended, therefore, that whilst the appellant should pay 75 per cent of the respondent’s costs of the Case Stated, it should recover 25 per cent of its costs of the Case Stated.
From this premise, the appellant contended that whilst separate costs orders should not be made, that is to say, costs orders going “each way”, a setting-off of costs orders should result in the appellant paying 50 per cent of the respondent’s costs.
The appellant suggested that the respondent should be given an opportunity to respond in writing within 7 days.
Determination of the question of costs
These submissions should be rejected. It may be accepted that there is a certain rigorous logic associated with them. Whilst costs should be addressed in a manner that is both judicial and logical, it is necessary to address costs issues without undue expense or delay and, usually, in a broad way. It is often necessary for the Court to synthesize and bring to account a number of competing considerations in a manner that may not be reducible to any particular arithmetic or settled formula. It is usually sufficient if the relevant considerations are identified and brought to account in the exercise of the wide discretion conferred by s 40 of the Supreme Court Act 1935 (SA) and r 211.5 and Chapter 16 of the Uniform Civil Rules 2020 (SA).
There are two assumptions in the appellant’s suggested approach that are not established. The first is the assumption that 25 per cent of the time and costs incurred on the Case Stated were incurred in connection with the third question. In the assessment of the Court, very much less than this was required. The time spent on the third question in Court, for example, was a small fraction of the overall time spent at the hearing and, correspondingly, the same can probably be said about the written submissions and preparation. Acknowledging that the allowance can only be a broad one, and that precision is elusive, the Court’s impression is that a percentage well below 25 per cent would better reflect the relevant relativities.
The second assumption is that success on an issue by an otherwise unsuccessful appellant necessarily translates into an order that the appellant recover costs on that issue. In some cases it may not be appropriate to make any order other than that the costs should follow the event. Whether that is ordered will depend on the circumstances of the case and the exercise of what is often described as an unfettered discretion that must, nonetheless, be exercised judicially.[3]
[3] Cretazzo v Lombardi (1975) 13 SASR 4, 11 (Bray CJ).
Acknowledging that there is now a greater preparedness to award costs by reference to issues,[4] the Court may determine that justice will be done by denying a successful respondent a proportion of its costs on the issue on which it failed and without ordering that the unsuccessful appellant recover costs on the issue on which it succeeded.
[4] See, for example, Amaca Pty Ltd v Werfel (No 2) [2021] SASCFC 26, [61]-[62] (Kourakis CJ, Nicholson and Livesey JJ); Doerr v Gardiner (No 2) [2024] QCA 21, [21]-[22] (Morrison JA and Livesey AJA).
The Court’s intimation reflected that it was appropriate to make some allowance in the appellant’s favour. The allowance of 25 per cent is broad but reflected the parties’ relative successes on the questions agitated having regard to all of the circumstances of the Case Stated including the time spent and the relative importance of the questions agitated.
Conclusion
There is no need to disturb the costs order made by this Court on 22 February 2024. It has not been shown that the order is unreasonable or unjust. In these circumstances, it will not be necessary to hear from the respondent.
The appellant must pay the costs associated with the further submissions on costs, such as they may be.