Association of Mining and Exploration Companies Inc v Commissioner of State Revenue

[2016] WASCA 131 (S)

ASSOCIATION OF MINING AND EXPLORATION COMPANIES INC -v- COMMISSIONER OF STATE REVENUE [2016] WASCA 131 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2016] WASCA 131 (S)
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:120/2015	Heard:	29 JULY 2016
Coram:	BUSS P NEWNES JA MITCHELL JA	Delivered:	15/08/16
No of pages:	4	Judgment Part:	1 of 1
Result:	Respondent to pay appellant's costs of the appeal to be taxed
Category:	B
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Parties:	ASSOCIATION OF MINING AND EXPLORATION COMPANIES INC COMMISSIONER OF STATE REVENUE
Catchwords:	Costs Appeal allowed despite rejection of both parties' submissions on principal issue Whether respondent should be liable to pay less than 100% of the appellant's costs Whether departure from ordinary rule warranted
Legislation:	Nil
Case References:	Association of Mining and Exploration Companies Inc v Commissioner of State Revenue [2016] WASCA 131 Keet v Ward [2011] WASCA 139 Souter v Condor Developments Pty Ltd [2012] WASCA 227

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : ASSOCIATION OF MINING AND EXPLORATION COMPANIES INC -v- COMMISSIONER OF STATE REVENUE [2016] WASCA 131 (S) CORAM : BUSS P

NEWNES JA
MITCHELL JA

HEARD : 29 JULY 2016 DELIVERED : 15 AUGUST 2016 FILE NO/S : CACV 120 of 2015 BETWEEN : ASSOCIATION OF MINING AND EXPLORATION COMPANIES INC

Appellant

AND

COMMISSIONER OF STATE REVENUE
Respondent

ON APPEAL FROM:

Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA

Coram : JUDGE T SHARP (DEPUTY PRESIDENT)

Citation : ASSOCIATION OF MINING AND EXPLORATION COMPANIES INC and COMMISSIONER OF STATE REVENUE [2015] WASAT 74

File No : CC 46 of 2015

Catchwords:

Costs - Appeal allowed despite rejection of both parties' submissions on principal issue - Whether respondent should be liable to pay less than 100% of the appellant's costs - Whether departure from ordinary rule warranted

Legislation:

Nil

Result:

Respondent to pay appellant's costs of the appeal to be taxed

Category: B

Representation:

Counsel:

Appellant : Ms J J Batrouney QC
Respondent : Mr A J Sefton

Solicitors:

Appellant : PricewaterhouseCoopers
Respondent : State Solicitor's Office

Case(s) referred to in judgment(s):

Association of Mining and Exploration Companies Inc v Commissioner of State Revenue [2016] WASCA 131
Keet v Ward [2011] WASCA 139
Souter v Condor Developments Pty Ltd [2012] WASCA 227



1 REASONS OF THE COURT: On 29 July 2016, we published our reasons for allowing the appellant's appeal.1 The State Administrative Tribunal's decision was set aside and the matter remitted to the Tribunal for reconsideration. At the conclusion of our reasons, we indicated that we would hear from the parties as to the costs of the appeal and consequential orders, including as to whether the Tribunal should be differently constituted on reconsideration of the matter.

2 The parties agreed that, on reconsideration, the Tribunal should be differently constituted. However, the parties disagreed as to the appropriate costs order. The appellant contended that the respondent should pay its costs of the appeal. The respondent contended that she should pay only 50% of the appellant's taxed costs of the appeal, or such other proportion of those costs as the court thought appropriate.

3 The parties agreed that the court should determine the appropriate costs order by reference to the transcript of proceedings at judgment delivery (when the full coram was not available to sit).

4 The applicable principle was not in dispute. The parties both accepted that the general rule is that the successful party should recover its reasonably incurred costs even where that party has not succeeded on all heads of claim. Generally costs follow the event, rather than the issues. However, in an appropriate case where parties have enjoyed mixed success on a multiplicity of issues, and it is in the interests of justice to do so, the court may make a costs order which reflects the measure of success each party enjoyed in the proceedings.2

5 In the present case the appellant was successful in having the Tribunal's decision set aside. It succeeded on two of its grounds of appeal, to which most effort was directed in written and oral argument. The respondent's notice of contention was not successful. Both parties contended that it was not necessary to remit the matter to the Tribunal, a position which the court did not ultimately accept.

6 The respondent correctly submits that the central issue in the appeal was the proper construction of s 41 of the Pay-roll Tax Assessment 2002 (WA) (Act), and the court did not accept either party's contention on this issue. The respondent goes on to contend that, in those circumstances, it should be obliged to pay only a proportion of the appellant's costs of the appeal.

7 We do not accept the latter submission. The appellant's grounds necessarily raised for determination the proper construction of s 41 of the Act. This was a matter which the court was required to consider and the parties were required to address in any event. The respondent cannot claim success on the constructional issue, and the grounds on which the appellant succeeded necessarily required the parties to address that question. The respondent did not enjoy any measure of success and, in all the circumstances, there is no warrant for departing from the usual rule that costs should follow the event.

8 The appropriate order as to costs is that the respondent should pay the appellant's costs of the appeal to be taxed.

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1Association of Mining and Exploration Companies Inc v Commissioner of State Revenue
[2016] WASCA 131.
2 See Keet v Ward [2011] WASCA 139 [18] - [21] and Souter v Condor Developments Pty Ltd [2012] WASCA 227 [28] - [29].