The Warehouse Group (Australia) Pty Ltd v Bevendale Pty Ltd (No 3)

[2002] VSC 314

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

VALUATION, COMPENSATION & PLANNING LIST

No. 8757 of 2001

THE WAREHOUSE GROUP (AUSTRALIA) PTY LTD (ACN 003 038 702)

Appellant

v

BEVENDALE PTY LTD (ACN 006 392 267)

WHITTLESEA CITY COUNCIL

ISPT PTY LTD (ACN 067 493 074)

First Respondent

Second Respondent

Third Respondent

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JUDGE:	Balmford J
WHERE HELD:	Melbourne
DATE OF HEARING:	2 August 2002
DATE OF JUDGMENT:	8 August 2002
CASE MAY BE CITED AS:	The Warehouse Group v Bevendale (No 3)
MEDIUM NEUTRAL CITATION:	[2002] VSC 314

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COSTS – no justifications for limiting the appellant’s costs – the third respondent be granted an indemnity certificate although no costs are sought against it

Appeal Costs Act 1998 – sections 4, 5(1)(b), 37(1)

Attorney-General for the State of Victoria v The Warehouse Group P/L [2002] VSCA 76
Portland Properties Pty Ltd v Melbourne & Metropolitan Board of Works (1971) 38 LGRA 6
Warehouse Group P/L v Bevendale P/L (No 1) [2002] VSC 108

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms S M Brennan	Deacons
For the First Respondent	Mr A J Finanzio	Freehills
For the Third Respondent	Mr L Schwarz	Holding Redlich

HER HONOUR:

1. This appeal from a decision of the Victorian Civil and Administrative Tribunal (“the Tribunal”) was heard by me over five days in March and April 2002.   On 12 April 2002 I delivered judgment [1] , allowing the appeal on the ground (ground 16 of the grounds in the appellant’s Notice of Appeal) that the Tribunal from which the appeal was brought was not properly constituted in accordance with clause 52 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 and accordingly did not have jurisdiction to make the decision under appeal. That being so, I indicated that it was not appropriate that consideration be given to the issues raised by grounds 1 to 15 of the Notice of Appeal, and I invited submissions as to costs.

   [1][2002] VSC 108

1. On 17 May 2002 the Court of Appeal made orders [2] allowing an appeal from that decision, and remitting the appeal by the appellant (“Warehouse”) from the Tribunal to the Trial Division of the Court for determination according to law in the light of the reasons for judgment of the Court of Appeal;  that is, on the basis that the Tribunal was properly constituted and had jurisdiction to make the decision which it made.

   [2][2002] VSCA 76

1. With the agreement of the parties, I proceeded to deal with the matter on the basis of the submissions made at the hearing as to grounds 1 to 15 in the Notice of Appeal, and without hearing further oral submissions.   On 29 July 2002 I delivered judgment, allowing the appeal on the basis of grounds 1 and 2.   I found that the failure of the Tribunal to grant Warehouse’s application for an adjournment of the proceeding before it constituted a denial of natural justice to Warehouse, and was thus a vitiating error of law in terms of the well known passage from Portland Properties Pty Ltd vMelbourne & Metropolitan Board of Works[3] (ground 1). Implicit in that finding was a finding that the Tribunal had not given Warehouse a reasonable opportunity to be heard, contrary to section 117 of the Planning and Environment Act 1987 (ground 2). I indicated that there would be an order that the orders of the Tribunal as against both Warehouse and the third respondent (“ISPT”) be set aside and the matter remitted to the Tribunal to be heard and determined by a differently constituted Tribunal, and I invited submissions as to the form of the order and as to costs.

   [3](1971) 38 LGRA 6 at 18

1. Those submissions were made on 2 August 2002 and on that date I ordered that the order of the Tribunal dated 5 December 2001 in proceeding P50913/2001 be set aside and remitted to the Tribunal for hearing in accordance with law by a member other than T Komesaroff, and reserved my decision on the costs, to which I now turn.

1. These reasons should be read with my reasons for judgment of 12 April and 29 July 2002 and with regard to the decision of the Court of Appeal.

1. It was not disputed that there should be an order that Warehouse pay the costs of the first respondent (“Bevendale”) in relation to ground 16 in the Notice of Appeal, which ultimately proved unsuccessful, and Ms Brennan, for Warehouse, indicated that her client did not seek a certificate under the Appeal Costs Act 1998 (“the Act”) in respect of those costs.

1. Ms Brennan submitted further that in accordance with the general practice that costs follow the event, Bevendale should be ordered to pay the costs of Warehouse in relation to the remainder of the appeal. Mr Finanzio, for Bevendale, conceded that his client should bear some of those costs, and sought a certificate under the Act in that respect. However, he submitted that the burden should be limited, in that Bevendale should be ordered to pay only:

·the costs in relation only to the successful ground of appeal;  or

·$50,000, being the maximum amount which Bevendale would be entitled to receive pursuant to the Act, by virtue of section 5(2) (no other amount having been prescribed under that provision).

1. Mr Finanzio argued that it was relevant that a number of the grounds which had not needed to be considered by the Court on the appeal, chiefly those relating to the goods being sold, remained to be litigated again before a differently constituted Tribunal. Considerable time had been devoted to those grounds at the hearing before the Court, as well as at the original Tribunal hearing. The issues before the Court had justified the retention of senior counsel on both sides, and the availability of a certificate under the Act would be of little comfort in all the circumstances. Had the hearing before the Court been devoted only to grounds 1, 2 and 16, his client’s position would have been very different.

1. However, as Ms Brennan submitted, it is in the nature of an appeal that a number of points may be argued, and that the appellant need only be successful on one of those points.   I do not regard Mr Finanzio’s submission as justifying an exception to the general rule that costs follow the event.   He did not point to any judicial decision or legislative provision which could assist him.   Ms Brennan also submitted that it was relevant that Bevendale had rejected a number of requests that it consent to the proposed adjournment, to which the Council and ISPT had consented.   While I accept the submission of Mr Finanzio that Bevendale, in rejecting those requests, was properly concerned to keep the proceedings moving, the absence of any submission that disadvantage would result to Bevendale from the adjournment was significant (see [52] of my reasons for judgment of 29 July).

1. Mr Schwarz, for ISPT, sought an indemnity certificate under the Act in respect of his client’s costs of the appeal to this Court. In his submission, the appeal having succeeded, his client, as a respondent to the appeal, was entitled to a certificate under section 4 of the Act, in the exercise of the Court’s discretion under section 37(1). No order for costs against his client had been sought by any other party, and on the assumption that accordingly no such order would be made, he submitted that if his client were granted a certificate it would be entitled to payment by the Appeal Costs Board (“the Board”) of an amount equal to its own costs of the appeal, on a party and party basis, under section 5(1)(b) of the Act.

1. He submitted further that should the Board not take the view that his client was so entitled, it would be appropriate that the Court order that its costs in relation to ground 16 be paid by Warehouse, and its costs in relation to the remaining ground by Bevendale.   Submissions rejecting those propositions were made respectively by Mr Finanzio and Ms Brennan.

1. It seems to me that it is unlikely that the Court will be required to rule on those submissions, and accordingly it would not be appropriate to make any ruling at this stage. If the question does arise, it may well not be necessary to hold a further hearing, in the light of the submissions which were made. I consider it appropriate that I adopt the primary submission of Mr Schwarz, that a certificate under the Act be granted to his client, and liberty be given to apply should any difficulty occur of the kind to which he referred.

1. For the reasons given, there will be orders:

1.That Warehouse pay the costs of Bevendale in relation to ground 16 in the Notice of Appeal.

2.That Bevendale pay the costs of Warehouse in relation to the remainder of the appeal.

3.That Bevendale be granted an indemnity certificate in respect of the costs of Warehouse.

4.That ISPT be granted an indemnity certificate in respect of its costs.

5.That there be liberty to apply.

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