BHP Billiton Iron Ore Pty Ltd v WORKERS' Compensation and Rehabilitation Commission
[2002] WASCA 195 (S)
•29 JULY 2002
BHP BILLITON IRON ORE PTY LTD -v- WORKERS' COMPENSATION AND REHABILITATION COMMISSION [2002] WASCA 195 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 195 (S) | |
| THE FULL COURT (WA) | 29/07/2002 | ||
| Case No: | CIV:1028/2002 | 21 JUNE 2002 | |
| Coram: | MURRAY J | 21/06/02 | |
| 1/11/02 | |||
| 5 | Judgment Part: | 1 of 1 | |
| Result: | No order for costs | ||
| B | |||
| PDF Version |
| Parties: | BHP BILLITON IRON ORE PTY LTD (ACN 008 700 981) WORKERS' COMPENSATION AND REHABILITATION COMMISSION ALCOA OF AUSTRALIA LTD (ACN 004 879 298) |
Catchwords: | Certiorari Costs Consideration of award where respondent did not oppose grant of orders absolute Turns on own facts |
Legislation: | Nil |
Case References: | R v McWilliam; Ex parte Juras, unreported; FCt SCt of WA; Library No 960637; 11 October 1996 Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 City of Subiaco v Minister for Planning and Heritage, unreported; FCT SCt of WA; Library No 970051; 19 February 1997 Re Boothman; Ex parte Trigg [1999] WASC 102 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : BHP BILLITON IRON ORE PTY LTD -v- WORKERS' COMPENSATION AND REHABILITATION COMMISSION [2002] WASCA 195 (S) CORAM : MURRAY J HEARD : 21 JUNE 2002 DELIVERED : 21 JUNE 2002 PUBLISHED : 29 JULY 2002 SUPPLEMENTARY
DECISION : 1 NOVEMBER 2002 FILE NO/S : CIV 1028 of 2002 BETWEEN : BHP BILLITON IRON ORE PTY LTD (ACN 008 700 981)
- Applicant
AND
WORKERS' COMPENSATION AND REHABILITATION COMMISSION
Respondent
- Applicant
AND
(Page 2)
WORKERS' COMPENSATION AND REHABILITATION COMMISSION
Respondent
Catchwords:
Certiorari - Costs - Consideration of award where respondent did not oppose grant of orders absolute - Turns on own facts
Legislation:
Nil
Result:
No order for costs
Category: B
Representation:
CIV 1028 of 2002
Counsel:
Applicant : No appearance
Respondent : No appearance
Solicitors:
Applicant : Blake Dawson Waldron
Respondent : State Crown Solicitor
(Page 3)
CIV 1029 of 2002
Counsel:
Applicant : No appearance
Respondent : No appearance
Solicitors:
Applicant : Blake Dawson Waldron
Respondent : State Crown Solicitor
Case(s) referred to in judgment(s):
R v McWilliam; Ex parte Juras, unreported; FCt SCt of WA; Library No 960637; 11 October 1996
Case(s) also cited:
Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616
City of Subiaco v Minister for Planning and Heritage, unreported; FCT SCt of WA; Library No 970051; 19 February 1997
Re Boothman; Ex parte Trigg [1999] WASC 102
(Page 4)
1 MURRAY J: These two applications for writs of certiorari and prohibition raised identical issues and were heard together. In each case the respondent gave notice that it did not intend to appear by counsel and would abide the decision of the Court, save as to costs. In respect of both cases we had the benefit of the assistance of counsel for the Hon Attorney General, appearing by leave as amicus curiae.
2 In each case, after hearing argument, the Court made an order absolute for certiorari. The Court's reasons for that decision were published on 29 July 2002, the Court having referred applications for costs to me for determination on the basis of written submissions which have now been received.
3 The applications are not, of course, made against amicus curiae, who is to bear his own costs. They are made against the respondent on the ground that, while the respondent did not seek to be heard, it was necessarily and properly named as respondent in each case. It is therefore a body against whom costs may be awarded in the exercise of the Court's discretion. Under the relevant statutory scheme the respondent was the body which made the error of law grounding the issue of certiorari. It is put that the proceedings before the Full Court were necessary to establish the error and quash the decisions in question. It is unfair in those circumstances, so it is argued, that the applicants for relief should bear their own costs.
4 There is much to be said for that argument, but it is equally a forceful consideration that the decision of the respondent was taken in good faith pursuant to the relevant statutory scheme and the usual practice of the Court is not to award costs against a decision-maker of this type, which is not a volunteer but performing a statutory function, unless the decision-maker enters the arena to justify and support the validity of its decision. The usual practice is based upon the unfairness of making the award against the party in question unless there is some particular consideration which would justify an order for costs: R v McWilliam; Ex parte Juras, unreported; FCt SCt of WA; Library No 960637; 11 October 1996, per Murray J at 13, Franklyn and Owen JJ agreeing.
5 In my view, there is nothing in this case which would warrant the making of orders for costs in favour of these applicants against this particular respondent on grounds of fairness, or otherwise having regard to matters appropriate to the exercise of the Court's discretion. In this case the order of the Court is that there should be no order as to costs, with the result that each party shall bear its own costs.
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