Faamate & Ors v Congregational Christian Church in Samoa-Australia (Ipswich Congregation) & Ors [2020] QCA 263

SUPREME COURT OF QUEENSLAND CITATION: Faamate & Ors v Congregational Christian Church in Samoa-Australia (Ipswich Congregation) & Ors [2020] QCA 263 PARTIES: TAUA MEAULI FAAMATE (first appellant) LAGILAGIA FAAMATE (second appellant) VAEA LOLE NOUATA (third appellant) SEGIA NOUATA (fourth appellant) MAIAVA PERETISO MULIAGA (fifth appellant) NAUMATI MULIAGA (sixth appellant) TUITEA MAFUTAGA FOE (seventh appellant) LEITU FOE (eighth appellant) TAGO AVE IATIGA (ninth appellant) SEUAANA TAOFIA MULIAGA (tenth appellant) LINE MULIAGA (eleventh appellant) FAALAA TUSI FANOLUA (twelfth appellant) ALA FANOLUA (thirteenth appellant) LUATUA ASOSILI SETEFANO (fourteenth appellant) TALALELEI SETEFANO (fifteenth appellant) FALEAUTO TALUVALE FA (sixteenth appellant) JUNIOR PAPUA (seventeenth appellant) SENIA PATO (eighteenth appellant) ASO AUKUSO (nineteenth appellant) TIANA AFAESE (twentieth appellant) LEAVEA JONES (twenty-first appellant) v -- 1 of 4 -- 2 CONGREGATIONAL CHRISTIAN CHURCH IN SAMOA-AUSTRALIA (IPSWICH CONGREGATION) ABN 90 103 392 182 (first respondent) KERITA REUPENA (second respondent) TIPI TISEMA (third respondent) LOLINI SAKAIO (fourth respondent) FILE NO/S: Appeal No 9455 of 2019 SC No 12831 of 2016 DIVISION: Court of Appeal PROCEEDING: General Civil Appeal – Further Orders ORIGINATING COURT: Supreme Court at Brisbane – [2019] QSC 194 (Wilson J) DELIVERED ON: 27 November 2020 DELIVERED AT: Brisbane HEARING DATE: Heard on the papers JUDGES: McMurdo JA and Lyons SJA and Boddice J ORDERS: 1. The appellants to pay one half of the first respondent’s costs of the appeal. 2. The second respondent to pay one half of the first respondent’s costs of the appeal. 3. The appellants, the third respondent and the fourth respondent bear their own costs of the appeal. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW EVENT – GENERAL PRINCIPLES AND EXERCISE OF DISCRETION – where the respondents were successful on the outcome of the appeal – where the appellants were successful in arguing that the trial judge’s discretion miscarried – where some respondents engaged in misconduct related to the litigation – whether these circumstances warrant some departure from the usual order as to costs Faamate v Congregational Christian Church in Samoa-Australia (Ipswich Congregation) & Ors [2020] QCA 87, related John Urquhart t/as Hart Renovations v Partington [2016] QCA 199, cited Oshlack v Richmond River Council (1998) 193 CLR 72, [1998] HCA 11, applied Sequel Drill & Blast Pty Ltd v Whitsunday Crushers Pty Ltd (No 2) [2009] QCA 239, cited -- 2 of 4 -- 3 COUNSEL: V G Brennan for the appellants N J Pearce for the respondents SOLICITORS: Corney & Lind Solicitors for the appellants Neumann & Turnour Lawyers for the respondents [1] McMURDO JA: This judgment deals with the costs of the appeal which, by a judgment earlier this year,1 was dismissed. The successful respondents say that the costs of the appeal should follow the event and that the appellants should pay them. The appellants submit that each party should bear their own costs, or that the appellants should bear only a proportion of the respondents’ costs, or that Mr Reupena should pay the costs of the first and third respondents. [2] The respondents’ argument needs little explanation. By r 766(1)(d) of the Uniform Civil Procedure Rules 1999, the Court “may make the order as to the whole or part of the costs of an appeal it considers appropriate”, and the general principle that a successful party is usually given its costs is applicable under that rule.2 The respondents cite the well-known passage from the judgment of McHugh J in Oshlack v Richmond River Council:3 “[67] The expression the ‘usual order as to costs’ embodies the important principle that, subject to certain limited exceptions, a successful party in litigation is entitled to an award of costs in its favour. The principle is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant. Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party. If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation.” (Footnotes omitted.) [3] The appellants’ argument largely relies upon this Court’s conclusion (contrary to that of the trial judge) that the litigation of some issues at the trial, upon which the respondents were unsuccessful, involved an improper application of the Association’s funds. In this Court,4 it was held that “[t]he expenditure of more than a trivial proportion of [the Association’s funds], to the detriment of the Association’s financial position, was done to defend the indefensible conduct of Mr Reupena and his supporters about the amendment of the constitution and the appointment of the management committee.” In the view of this Court, this was “a substantial consideration, which supported a winding up, which was not weighed in the exercise of her Honour’s discretion.”5 Consequently, this Court re-exercised the discretion, although with the same result. 1 Faamate & Ors v Congregational Christian Church in Samoa-Australia (Ipswich Congregation) & Ors [2020] QCA 87. 2 Sequel Drill & Blast Pty Ltd v Whitsunday Crushers Pty Ltd (No 2) [2009] QCA 239; John Urquhart t/as Hart Renovations v Partington [2016] QCA 199 at [8]. 3 (1998) 193 CLR 72, 97. 4 [2020] QCA 87 at [56]. 5 [2020] QCA 87 at [55]. -- 3 of 4 -- 4 [4] On the basis of that part of the judgment, the appellants submit that they were “entirely successful on the primary issue in the Appeal”, which was whether the trial judge’s discretion miscarried. Further, it is said that the appellants’ success on this issue served to correct an error of legal principle which may have infected other cases involving the same issue. [5] The appellants’ argument raises two considerations which are presently relevant. The first is that the resolution of this issue in their favour has an importance beyond this appeal. Its particular importance is in relation to the future conduct of this Association’s affairs, because it was apparent from the respondents’ persistence in defending this improper use of the Association’s funds that conduct of that kind would be likely to reoccur, at least whilst Mr Reupena occupied his present position, if this Court did not express its disapproval. Secondly, the appellants’ argument identifies not only a misconduct in the management of the Association’s finances, but a misconduct which is related to the litigation. In Oshlack, McHugh J said that the Court may properly depart from the usual order as to costs when the successful party has engaged in misconduct in relation to the litigation.6 [6] I am persuaded that these circumstances warrant some departure from the usual order as to costs. On the other hand, if this Court made no order as to the costs of the appeal, it would not reflect the overall success enjoyed by the respondents. [7] An alternative submission made for the appellants is that Mr Reupena should pay the costs of other respondents on the basis that he was the “architect of the proceedings”. That submission is persuasive insofar as it seeks to relieve the Association from the cost consequences of what was argued in its name. My conclusion in these relatively unusual circumstances is that it is appropriate that the Association should have the entirety of its costs, to be paid as to one half by the appellants and as to the other half by Mr Reupena. He should bear his own costs as should the other respondents to this appeal. [8] I would order as follows: 1. Order the appellants to pay one half of the first respondent’s costs of the appeal. 2. Order the second respondent to pay one half of the first respondent’s costs of the appeal. 3. The appellants, the third respondent and the fourth respondent bear their own costs of the appeal. [9] LYONS SJA: I agree with the reasons of his Honour McMurdo JA and the orders proposed. [10] BODDICE J: I agree with McMurdo JA. 6 Oshlack v Richmond River Council (1998) 193 CLR 72, 97 at [69]. -- 4 of 4 --