Acebrook Corporation Pty Ltd v McEwan
[2014] WASCA 162 (S)
•8 OCTOBER 2014
ACEBROOK CORPORATION PTY LTD -v- McEWAN [2014] WASCA 162 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASCA 162 (S) | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:113/2013 | ON THE PAPERS | |
| Coram: | McLURE P NEWNES JA EDELMAN J | 8/10/14 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | First respondent to pay appellants' costs of application before primary judge to be taxed First respondent to pay appellants' costs of appeal to be taxed First respondent granted indemnity certificate under Suitors' Fund Act | ||
| B | |||
| PDF Version |
| Parties: | ACEBROOK CORPORATION PTY LTD INSURANCE AUSTRALIA LTD t/as CGU WORKERS COMPENSATION KELLY ANNE McEWAN DIRECTOR OF DISPUTE RESOLUTION DIRECTORATE |
Catchwords: | Costs Appeal not hypothetical Costs follow event Appeal on question of law of general application Suitors' Fund Act 1964 (WA), s 10(1) Indemnity certificate granted |
Legislation: | Suitors' Fund Act 1964 (WA), s 10(1) |
Case References: | Acebrook Corporation Pty Ltd v McEwan [2014] WASCA 162 Richards v Faulls Pty Ltd [1971] WAR 129 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : ACEBROOK CORPORATION PTY LTD -v- McEWAN [2014] WASCA 162 (S) CORAM : McLURE P
- NEWNES JA
EDELMAN J
- First Appellant
INSURANCE AUSTRALIA LTD t/as CGU WORKERS COMPENSATION
Second Appellant
AND
KELLY ANNE McEWAN
First Respondent
DIRECTOR OF DISPUTE RESOLUTION DIRECTORATE
Second Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : KENNETH MARTIN J
Citation : McEWAN -v- DIRECTOR OF DISPUTE RESOLUTION DIRECTORATE [2013] WASC 355
File No : CIV 1263 of 2012
Catchwords:
Costs - Appeal not hypothetical - Costs follow event - Appeal on question of law of general application - Suitors' Fund Act 1964 (WA), s 10(1) - Indemnity certificate granted
Legislation:
Suitors' Fund Act 1964 (WA), s 10(1)
Result:
First respondent to pay appellants' costs of application before primary judge to be taxed
First respondent to pay appellants' costs of appeal to be taxed
First respondent granted indemnity certificate under Suitors' Fund Act
Category: B
Representation:
Counsel:
First Appellant : Mr G R Hancy
Second Appellant : Mr G R Hancy
First Respondent : Mr M A Tedeschi
Second Respondent : Not applicable
Solicitors:
First Appellant : SRB Legal
Second Appellant : SRB Legal
First Respondent : Waterside Legal
Second Respondent : Not applicable
Case(s) referred to in judgment(s):
Acebrook Corporation Pty Ltd v McEwan [2014] WASCA 162
Richards v Faulls Pty Ltd [1971] WAR 129
1 JUDGMENT OF THE COURT: On 2 September 2014, this court allowed an appeal by the appellants against an order of Kenneth Martin J that a writ of certiorari issue to quash a decision of a delegate of the second respondent (the Director) under the Workers' Compensation and Injury Management Act 1981 (WA) (the Act): Acebrook Corporation Pty Ltd v McEwan [2014] WASCA 162.
2 The Director, by his delegate, had refused an application by the first respondent for an extension of time to 30 June 2011 to make an election to retain the right to claim damages under s 93K of the Act. He considered that the extension of time sought by the first respondent would exceed the maximum period permitted under the Act for the election to be made. The Director had therefore declined to register the first respondent's election as it was out of time.
3 We found that the Director had correctly refused the extension of time, for the reason he gave, and that the primary judge had erred in ordering that a writ of certiorari issue to quash the decision. We set aside the orders of the primary judge.
4 It was ordered that the question of costs be dealt with on the papers. Both sides have filed written submissions on costs, in each case supported by an affidavit.
5 The first respondent contends that notwithstanding the appellants were successful on the appeal, they are not entitled to their costs. Counsel for the first respondent submitted, in effect, that the appeal was unnecessary because the question it raised was hypothetical. It was hypothetical because, on 30 May 2014, some 19 days before the hearing of the appeal, the Director had extended the termination day to 30 June 2011 and registered the first respondent's election. It was submitted that in those circumstances the appeal served no purpose as any subsequent decision of this court to set aside the order of the primary judge would not affect the validity of the registration of the first respondent's election. The appellants should not therefore have pursued the appeal.
6 The affidavits of the parties explain the circumstances in which the registration of the first respondent's election came about. The relevant events were as follows.
7 On 26 September 2013, following the delivery of his reasons for decision, the primary judge made an oral order that a writ of certiorari issue for the purpose of quashing the decision of the Director. For reasons which are not apparent, it seems the order was not settled until 4 November 2013.
8 In the meantime, on 10 October 2013, the appellants had commenced the appeal. The appeal notice was served on the first respondent's solicitors on 16 October 2013. The appellants' case was filed on 14 November 2013 and the first respondent's answer was due to be filed by 9 December 2013. It was in fact filed on 6 December 2013.
9 On 4 December 2013, upon receipt of the settled order, the first respondent's solicitors wrote to the Director enclosing a copy of the order and asking that the first respondent's election be registered. Remarkably, the first respondent's solicitors did not mention in the letter that an appeal had been commenced. Nor did the first respondent's solicitors inform the Director of that subsequently.
10 On 24 February 2014, the Court of Appeal registrar notified the parties that the appeal had been set down for hearing on 18 June 2014.
11 By a letter dated 28 May 2014, the Director informed the first respondent's solicitors that as a consequence of the order of the primary judge, the termination day had been extended to 30 June 2011 and the first respondent's election had been registered with effect from 28 May 2014.
12 According to an affidavit of the solicitor for the appellants, it was only on 30 May 2014 that the appellants' solicitors became aware that the first respondent had applied to the Director for the extension of time and registration of the election in reliance on the order of the primary judge. The appellants' solicitors then wrote to the Director enquiring whether he had been informed of the appeal. The Director responded in a letter dated 24 June 2014 in which he said that from enquiries he had made, no one in his office had been aware of the appeal.
13 Before turning to the costs issue, we must observe that it was quite inappropriate for the first respondent's solicitors to ask the Director to act on the decision of the primary judge without alerting him to the fact that the decision was the subject of an appeal. No explanation is offered for the failure to mention the appeal. It is not suggested that it was the result of an oversight. Indeed, it would strain credibility to suggest that it was. In circumstances where the first respondent's solicitors appear to have been of the view that, once registered, the election would be immune from the consequences of a successful appeal, it is difficult to avoid the conclusion that the appeal was not mentioned because of concern that registration of the election might then be delayed until after the appeal had been determined. In his submissions on costs, the first respondent's counsel maintained the position that the outcome of the appeal could have no consequences for the registration of the election.
14 That is, on its face, a surprising proposition and one that is contested by the appellants. While we have not heard argument on the point, our preliminary view is that it is without merit.
15 In any event, counsel for the appellants specifically mentioned on the hearing of the appeal that the first respondent's election had been registered in reliance on the order of the primary judge. He submitted, however, that that did not render the appeal hypothetical and that the appeal should be heard and determined. Counsel for the first respondent did not take issue with that. We accepted it was appropriate that the appeal proceed. We are of no different view now.
16 Ordinarily, the costs of an appeal follow the event: see Rules of the Supreme Court 1971 (WA), O 66 r 1(1). There is no reason in this case that the appellants should be denied an order for costs. There will be an order that the first respondent pay the appellants' costs of the appeal and their costs below, to be taxed.
17 In the event of such an order, the first respondent sought a certificate under s 10(1) of the Suitors' Fund Act 1964 (WA). That section provides that where an appeal succeeds on a question of law, the court may grant the respondent an indemnity certificate in respect of the costs of the appeal. It is not, however, sufficient merely to show that the appeal has been decided on a question of law; an applicant for a certificate must show some ground calling for the exercise of the discretion: Richards v Faulls Pty Ltd [1971] WAR 129, 137 - 139. A relevant consideration will be the degree to which the question of law involved a question of general application, rather than a question which turned on the facts of the particular case.
18 The appeal in this case succeeded on a question of law. It turned on the proper construction of s 93M(1) and s 93M(6) of the Act and the issue was one of general application. It is appropriate that the first respondent be granted a certificate under s 10(1) of the Suitors' Fund Act.
19 The following orders will be made:
1. The first respondent pay the appellants' costs of the application before the primary judge, to be taxed;
2. The first respondent pay the appellants' costs of the appeal, to be taxed;
3. The first respondent be granted an indemnity certificate in respect of her costs of the appeal, pursuant to s 10(1) of the Suitors' Fund Act.
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