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R v RACING, GAMING AND LIQUOR COMMISSION & ANOR: EXP. TANGENTYERE COUNCIL INC. (NO.2)
Supreme Court of the Northern Territory of Australia. Kearney J.
17 and 24 May 1988 at Alice Springs.

COSTS - prerogative writs - respondent resisting application - respondent succeeding in Tribunal on proposition found untenable, must pay costs of applicant - intervenors in support of successful application do not obtain costs as of course - in general only one set of costs should be granted - Supreme Court Rules 0.56 and Rule 63.03(1).

Cases applied:

Liverpool City Council v Weir (1984) 53 ALR 47 R v The Justices of Surrey (1850) 19 Law J Rep
(NS) MC 171

Cases referred to:
R v Industrial Disputes Tribunal; exp. American Express Co. Inc. (1954) 2 All ER 764
R v Secretary of State for Environment; exp. Hackney London Borough Council (1983) 3 All ER 358
R v West Riding of Yorkshire Justices; exp. Shaw (1898) 1 QB 503
In re Watson (1949) VLR 342

Counsel for the Applicant/Prosecutor Solicitor for the Applicant/Prosecutor

Counsel for the First Respondent Solicitor for the First Respondent

Counsel for the Second Respondent Solicitor for the Second Respondent

Counsel for three objectors Solicitor for three objectors

J. S. Brown CAALAS

S. McGrath Solicitor for NT

M. Figwer Poveys
Stone Buckley & Stone

kea880076
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA
AT ALICE SPRINGS No.38 of 1988

BETWEEN:
THE QUEEN AND:
RACING GAMING AND LIQUOR
COMMISSION

First Respondent
and:

NORTHCORP LIMITED
Second Respondent
Ex Parte TANGENTYERE COUNCIL INC.

(Applicant/Prosecutor)

CORAM:	Kearney J.

RULING ON COSTS
(delivered 24 May 1988)

I rule today on the question of the award of costs in the application for certiorari and prohibition, the subject of the judgment given on 16 May.  Before dealing with the submissions, I set out the background.

The application for a liquor licence

The second respondent (herein "Northcorp")  applied to the first respondent (herein  "the  Commission")  in  September 1987 for the grant of a liquor licence. The Cor;,.mission commenced the hearing of this application in April 1988. Northcorp was represented by  Mr Reeves  of  Counsel at that hearing, tendered documents in evidence and made submissions in support of the application. In  one  of  its written documents Mr Watson, Northcorp's nominee, stated that the application was:-

"	for the granting of	a	licence	in	principle prior to construction being commenced."

Mr Reeves confirmed in his opening that this was the purpose of the application. It was made clear that Northcorp  did not intend to conduct the supermarket business in connection with which the liquor licence was being soug·ht.

The Tangentyere Council {herein "the Council"), an objector, was represented by Mr Waugh of Counsel; the companies known as Egar Beavers Supermarket Pty Ltd and Woolworths {SA) Pty Ltd also appeared as objectors and were represented by Mr Berner of Counsel.

Both sets of objectors submitted that Northcorp's application was misconceived and that the Commission should proceed no further with the hearing; their submissions are summarised in para.14 of Mr Ferguson's affidavit of 29 April 1988.

On 21 April the Commission ruled, in effect, in favour of the proposition advanced by Northcorp - that it had power to entertain Northcorp's application and to grant the approval in principle to the grant of a licence which was sought. Certain evidence was then adduced by Northcorp and by both sets of objectors. On 21 April the Commission adjourned the further hearing until 24 May.

The proceedings for judicial review

On 21 April 1988 the Council instituted proceedings by originating motion in the Court under Order 56 of the Rules seeking orders by way of certiorari and prohibition to bring up and quash the Commission's decision to proceed with the hearing of Northcorp's application, to prevent the further hearing, and to prohibit the Commission from granting the application. I heard argument on 10 May.

Mr McDonald appeared for the Council and argued at length the case for relief. Mr Stone appeared for the 2

companies which had appeared before the Commission and which, together with a third company claiming to be interested in the outcome, Barn Developments Pty Ltd, were granted leave to apP,ear to support the application; he argued briefly in support of the application  for  relief. Mr McGrath appeared for the Commission, to submit to any
order made except in relation to costs. Mr Beazley appeared for Northcorp and argued in support of the approach taken by the Commission, and against the granting of relief.

On 16 May I made the orders sought by the Council for the reasons then published. The question of costs was reserved, and argued on 17 May.

The submissions on costs

The Council's submissions

The Council sought an order that Northcorp pay its costs, on the basis that that company had appeared and unsuccessfully opposed its application for judicial review.

)	The objectors' submissions

Mr Stone sought an order that the Commission and Northcorp pay the objectors' costs. Northcorp had unsuccessfully opposed the application. R v The Justices of Surrey (1850) 19 Law J. Rep. (N.S.) M.C.
171 established that it is a well-settled general rule that a party who succeeds in the tribunal below on a legal proposition which turns out to be untenable, and resists an application for mandamus to correct the error, is ordered to pay the costs of the successful party. As Patteson J. put it at p.172 -

"	if	a		party		makes		an mandamus		being	moved	for objection and fails, he must

objection and on a appears to support his pay costs."

That rule should apply to this application.

The costs of the proceedings for judicial review are within the discretion of the Court; see Rule 63.03(1).

While there was some doubt whether Northcorp should have been named together with the Commission as respondents in the originating motion the company in any event had appeared and contested the application.

As to the Commission, it had erred in law, and should pay the costs which flowed from its error.

Northcorp's submissions

Mr Figwer submitted that the Council and the Commission should pay Northcorp's costs. The Council had not in fact sought any relief against Northcorp, but only against the Commission. Order 56 did not provide for Northcorp to be joined in the proceedings, and the Council had wrongly joined the company.  The proceedings before the Commission and the Court were not in the nature of a lis inter parties; see In re Watson (1949) VLR 342 at p.349.

The Commission should pay Northcorp's costs because it had erred in law in ruling that it could entertain Northcorp's application, and had done so in a hearing involving a matter of public importance.

The 3 companies which had intervened were not entitled to costs; see Liverpool City Council v Weir (1984) 53 ALR 47. In that case the High Court held that an intervenor could not expect as of course that the unsuccessful party to the litigation into which it had intruded should bear the extra burden of its costs,

even if its intervention was well-intentioned and proved to be of assistance to the Court.

( d)	The Commission's submissions

Mr McGrath submitted that the Commission, which had merely entered a submitting appearance, should not be ordered to pay anyone's costs.

Conclusions

Although, as Rule 63.03(1) provides, the award of costs in proceedings before this Court is in the discretion of the court, in general at common law the proper exercise of that discretion requires that the unsuccessful party be ordered to pay his opponent's costs. Only in exceptional circumstances would it be appropriate to order a successful party to pay costs.

I consider that the Council properly  named Northcorp in its originating motion as a party, as well as the Commission. Northcorp had succeeded before the Commission on the point in issue, was directly affected by the relief being sought and was "interested in resisting the application", in the language of the former Order 55 Rule 1.

Northcorp did in fact vigorously contest the application. In these proceedings for judicial review under Order 56, it is arguable there is no true lis between the Crown {in whose name the proceedings are brought) or the Council and the Commission or Northcorp; see R v Secretary of State for the Environment; exp. Hackney London Borough Council (1983) 3 All E.R. 358. I express no opinion on that, but the question does not go to the issue of costs.

Under the order nisi procedure of Order 55  Rule 1 of the former Rules of Court, all interested parties could seek to appear at the hearing of the motion to make  the order absolute, either on the basis  that they had been served with the order nisi and required to show cause as "parties interested in resisting the application'', or that as interested parties they wished to be heard. I consider that this practice still holds under Order 56, which is intended to simplify the procedure for obtaining relief and to eliminate procedural technicalities in the machinery of judicial review. So even if Northcorp had not been named in the originating motion or served with it, it could have applied to be heard in opposition to the application. No objection was taken at the outset by Northcorp to its joinder, and in the event it was heard in opposition to the application. In this  situation I consider that the costs rule enunciated in R v The Justices of Surrey {supra) should be applied. I note that had Northcorp succeeded in its

argument it could have recovered costs; see	RV	West Riding

of Yorkshire Justices; exp. Shaw pp.511-512.

(1898)

1	QB	503	at

I do not consider that there should be any award of costs against the Commission; there is nothing to suggest that it acted perversely, oppressively or mala fide and it did not seek to defend its decision.

It is clear that the 3 companies which were granted leave to be heard had a sufficient interest of a direct and personal nature in the subject matter of this litigation to warrant their being heard in support of the Council's application. No objection was made to their application to be heard. It does not follow that they should have their costs. I accept that Liverpool City Council v Weir (supra) establishes that they do not obtain costs as of course simply because the Council's application succeeded. In my opinion, in situations such as this, in general only one set of costs should be granted; see R v Industrial Disputes Tribunal; exp. American Express Co. Inc. (1954) 2 All E.R. 764.

In the light of the foregoing the order is that Northcorp will pay the costs of the Council. The other applications for costs are dismissed.