Caloundra City Council v Minister for Natural Resources & Ors [1999] QSC 189

IN THE SUPREME COURT OF QUEENSLAND No. 6395 of 1998 Brisbane Before Justice Wilson [Caloundra City Council v Minister for Natural Resources & Ors] . BETWEEN: AND: AND: AND: THE COUNCIL OF THE CITY OF CALOUNDRA Applicant THE MINISTER FOR NATURAL RESOURCES ROBERT LACK PIPI HOLDINGS PTY LTD REASONS FOR JUDGMENT - WILSON J Judgment delivered 6 August 1999 Further order delivered 12 August 1999 First Respondent Second Respondent Third Respondent CATCHWORDS: PROCEDURE - COSTS - DEPARTING FROM THE GENERAL RULE - OTHER CASE - order that decision under review be quashed - majority oftime occupied with issue on which decision did not ultimately turn - each party partly responsible - no order as to costs Counsel: Solicitors: \ Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748, considered. Uniform Civil Procedure Rules rr 682, 689 Mr P J Favell for the applicant Mrs D A Mullins SC for the 1st and 2nd respondents Mr P G Bickford for the 3rd respondent Quinn & Scattini as town agents for Garland Waddington for the applicant B T Dunphy, Crown Solicitor for the 1st and 2nd respondents -- 1 of 5 -- Hearing date: ) \ / Lang Hemming & Hall as town agents for Griffiths, McColm & Parry for the 3rd respondent 12 August 1999 -- 2 of 5 -- 2 3 IN THE SUPREME COURT OF QUEENSLAND No. 6395 of 1998 Brisbane Before Justice Wilson [Caloundra City Council v Minister for Natural Resources & Ors] . BETWEEN: THE COUNCIL OF THE CITY OF CALOUNDRA AND: AND: AND: Applicant THE MINISTER FOR NATURAL RESOURCES ROBERT LACK PIPI HOLDINGS PTY LTD REASONS FOR JUDGMENT - WILSON J Judgment delivered 6 August 1999 Further order delivered 12 August 1999 . First Respondent Second Respondent Third Respondent The applicant has succeeded in obtaining an order that the decision under review be quashed. The hearing was completed in one day. The evidence was all on affidavit, and there was no cross-examination. Counsel made written submissions to which they spoke. The Uniform Civil Procedure Rules provide:- "General rule about costs 689 (1) Costs of a proceeding are in the discretion of the court but follow the event, unless the court considers another order is more appropriate. (2) Subrule (1) applies unless these rules otherwise provide." -- 3 of 5 -- 4 and 2 "Costs of question or part of proceeding 682 (1) The court may make an order for costs in relation to a particular question in, or a particular part of, a proceeding. (2) For sub rule (1), the court may declare what percentage of the costs of the proceeding is attributable to the question or part of the proceeding to which the order relates." These rules reflect the general law on costs which was summarized by Toohey 1. in Hughes v Western Australian Cricket Association (Inc.) (1986) A.T.P.R. 40-748 at 48,136 as follows:- "1. Ordinarily, costs follow the event and a successful litigant receives his costs in the absence of special circumstances justifying some other order. Ritter v. Godfrey (1920) 2 K.B. 47. 2. Where a litigant has succeeded only upon a portion of his claim, the circumstances may make it reasonable that he bear the expense of litigating that portion upon which he has failed. Forster v. Farquhar (1893) 1 Q.B. 564. 3. A successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other party's costs of them. In this sense, "issue" does not mean a precise issue in the technical pleading sense but any disputed question offact or of law. Cretazzo v. Lombardi (1975) 13 S.A.S.R. 4 at p.12." In argument the majority of the time was occupied with the issue which prompted the first n o and second respondents to make the decision which I have quashed (that is, the issue of whether 0 there had been a properly constituted objection hearing). The parties did address the issue on which the decision ultimately turned (that is, whether the Minister ought to have transmitted the application to the Governor in Council) in written and oral submissions - Applicant: First and Second Respondents: written submissions - paras. 40-42; oral submissions pages 19-21 written submissions - paras. 15-20; oral submissions pages 54-56 Third Respondent: oral submissions pages 40-44. -~-- ------ -- 4 of 5 -- ( I\ 5 6 7 3 It was submitted by the respondents that in view of my decision on the underlying issue the applicant's success is pyrrhic. It may prove to be so, but it is not for the court to presume what decision the Governor in Council will make. The underlying issue was first raised by the third respondent. It was as a result of . representations on its behalf that the first and second respondents made the decision I have quashed. It was nevertheless their decision. Thus each party bears some responsibility for what occurred. The matter was heard and determined in one day, and I am not disposed to make a costs order on an issues basis. In all the circumstances I have determined that there should be no order as to costs. -- 5 of 5 --