New South Wales Court of Appeal CITATION : ATTORNEY GENERAL v KENNEDY MILLER [1999] NSWCA 158 FILE NUMBER(S) : CA 40574/97 HEARING DATE(S) : 25 February 1998 30 June 1998 JUDGMENT DATE : 31 May 1999 ATTORNEY GENERAL OF NEW SOUTH WALES & ANOR PARTIES : v KENNEDY MILLER TELEVISION PTY LIMITED & ANOR JUDGMENT OF : Priestley JA at 1; Handley JA at 1; Powell JA at 1 LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : ALD 40089/96 LOWER COURT JUDICIAL OFFICER : Sperling J COUNSEL : P Webb QC/P J Saidi/S Dowling (Appellants) J E Griffiths (Respondents) I V Knight, State Crown Solicitor (Appellants) SOLICITORS : Mallesons Stephen Jaques (Respondent 1) Landerer & Co (Respondent 2) CATCHWORDS : COSTS - PROCEEDINGS TO REVIEW DECISION OF COSTS ASSESSOR - PRIMA FACIE IMMUNE FROM COSTS ORDERS CASES CITED: Najjar v Haines (1991) 25 NSWLR 224 DECISION : Cost orders made THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40574/97 ALD 30089/96 PRIESTLEY JA HANDLEY JA POWELL JA Monday 31 May 1999 THE ATTORNEY GENERAL OF NEW SOUTH WALES & ANOR v KENNEDY MILLER TELEVISION PTY LIMITED COSTS - proceedings to review decision of costs assessor - prima facie immune from costs orders The Court dismissed an appeal from a decision of Sperling J in judicial review proceedings that a costs assessor was bound, when asked, to give reasons for his decision on the assessment. At that stage the Court did not deal with questions of costs. HELD: A costs assessor, in the absence of misconduct or bad faith, should not be ordered to pay the costs of proceedings to review his decision. Najjar v Haines (1991) 25 NSWLR 224 applied. ORDERS (1) Sperling J's order that Mr Lancken pay Kennedy Miller's costs incurred in the proceedings at first instance set aside. (2) Nine to pay Kennedy Miller's costs incurred in the proceedings at first instance. (3) Sperling J's other orders as to costs at first instance confirmed. (4) The Attorney General pay the costs of the appeal, subject to order 5 following. (5) Nine pay the costs of the parties to the appeal occasioned by the order made on 30 June 1998 concerning the filing of written submissions on the question whether Sperling J's costs order against Lancken should be disturbed and by the subsequent preparation of and filing of those submissions. THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40574/97 ALD 30089/96 PRIESTLEY JA HANDLEY JA POWELL JA Monday 31 May 1999 THE ATTORNEY GENERAL OF NEW SOUTH WALES & ANOR v KENNEDY MILLER TELEVISION PTY LIMITED 1 THE COURT: Reasons for the court's principal decisions in this appeal were delivered on 30 June 1998. Orders having the effect of upholding the decision of Sperling J at first instance were then made. Not then decided was a question which had arisen in the course of argument concerning a costs order by Sperling J that Mr Lancken should bear the costs of the first instance proceedings. 2 Our earlier reasons describe how the position concerning the parties at first instance had come about. In the course of the argument it had been observed from the Bench that one possible view about the costs order in question was that since the Attorney General, as matters turned out, had only appeared as amicus curiae, and since Mr Lancken had been the decision maker and had not himself taken an active part in the first instance proceedings, he should not have been ordered to pay costs. On the other hand since Nine had taken an active role in the first instance proceedings it might have been the proper party to bear the burden of the costs order. As Nine had filed a submitting appearance, except as to costs, in the appeal and had not been represented during the hearing of the principal argument, this possible view about the costs order could not be explored further without hearing from Nine. 3 An order was therefore made on 30 June 1998 that Nine be given twenty-one days from then to file such submissions as it might wish on the questions, (a) should this court disturb the costs orders made by Sperling J, and if so, (b) what orders should be substituted, and that the other parties be given twenty-eight days from that date to file any further submissions any of them might wish to file on the same costs questions. All parties duly filed submissions. 4 In the submissions filed by Nine it was said that the following were the submissions which had been made before Sperling J on the relevant costs question: "(a) The circumstances giving rise to the proceedings before Sperling J, was the refusal by Lancken as costs assessor to give reasons for his determination as to costs. That was a decision that Channel 9 had no input in and no control of. (b) The evidence led by Kennedy Miller at the trial was not objected to by Channel 9. Such evidence was necessary on the application by Kennedy Miller to obtain reasons regardless of whether Channel 9 took an active part in the proceedings or not. Channel 9's role was confined to making submissions at the trial. (c) Regardless of whether Channel 9 participated at the trial, the trial was required as a result of Lancken's refusal to give reasons and Kennedy Miller's application that he do so. Those circumstances were beyond Channel 9's control. (d) The trial required the substantive consideration by the Court as to whether a costs assessor has an obligation to give reasons in respect of a cost determination. By Channel 9 participating at the trial and making submissions, the court obtained the benefit of such arguments that ran contrary to Kennedy Miller's position. (e) Given Lancken's submitting appearance, there existed a real possibility that unless Channel 9 participated at the trial and put such arguments before the Court, the Court would not have been suitably apprised of those matters, except to the extent that they were identified by Kennedy Miller in argument or which Sperling J would have otherwise researched or considered himself. (f) The application for leave to intervene on the part of the Attorney General (and the application regarding the withdrawal of the submitting appearance) were only made substantively on the first day of trial itself. " 5 Nine's submissions then said that Sperling J had accepted the above submissions in deciding upon his costs order. He did not say so in so many words, although he certainly found along their general line. What he said in the relevant part of his reasons was: "Nine was not instrumental in the refusal to give reasons. If Nine had not been joined as a defendant, the court would have had to determine Kennedy Miller's claim for an order that Mr Lancken give reasons. The argument against making such an order would have been carried by Mr Lancken under an unconditional appearance or by counsel for the Attorney-General amicus curiae. That part of the argument against the order was put by Nine at the hearing before me did not add to the issues in the case or prolong the hearing. It would not be fair to order Nine to bear Kennedy Miller's costs of proceedings which were not necessitated by anything done by Nine and which Nine did not prolong. Kennedy Miller's costs of the proceedings were incurred solely as a result of Mr Lancken's error in refusing to give reasons. (that is not intended as a personal criticism of him, in view of the authorities as they stood bearing most directly on the point.) For these reasons, Mr Lancken should pay Kennedy Miller's costs of the proceedings. (It is my expectation that Mr Lancken will be indemnified by the NSW Government in relation to those costs.) Nine should bear its own costs. It chose to take an active role in the proceedings. That was understandable but does not provide a basis for recovery of costs by one party against another. " 6 There are two features of Sperling J's reasons for ordering Mr Lancken to pay Kennedy Miller's costs which, with respect to him, lead us to think his exercise of discretion miscarried. One is that insufficient weight was given to the strength of the circumstance that Nine actively participated in the proceedings before Sperling J together with the fact that it was in Nine's interest to oppose the making of the declaration sought by Kennedy Miller. Nine was much more in the ordinary position of a losing litigant than Mr Lancken was. 7 The other matter is that no weight appears to have been given to the policy considerations expressed in Najjar v Haines (1991) 25 NSWLR 224, a decision of this court in which it was held, among other things, that a referee appointed under the Supreme Court Rules is as a matter of policy to be accorded immunity from costs orders. The position of assessors under the current system is not identical with that of referees, but in our opinion is sufficiently analogous to make it appropriate for a similar policy to be applied to them also, although we would add the proviso that this will not necessarily be so in cases where misconduct or lack of good faith is shown. There was of course no suggestion of any such features in the present case. 8 The combined effect of the foregoing matters leads us to conclude that the proper order should not have been that Mr Lancken pay the costs of Kennedy Miller at first instance, but that Nine do so. The result is that we think the order should be set aside, and Nine should pay Kennedy Miller's costs at first instance. 9 We therefore make the following costs orders consequent upon this appeal: 1. Sperling J's order that Mr Lancken pay Kennedy Miller's costs incurred in the proceedings at first instance set aside. 2. Nine to pay Kennedy Miller's costs incurred in the proceedings at first instance. 3. Sperling J's other orders as to costs at first instance confirmed. 4. The Attorney General pay the costs of the appeal, subject to order 5 following. 5. Nine pay the costs of the parties to the appeal occasioned by the order made on 30 June 1998 concerning the filing of written submissions on the question whether Sperling 's costs order against Lancken should be disturbed and by the subsequent preparation of and filing of those submissions. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.