Brown, J.T. v The Administration of Norfolk Island

[1991] FCA 657

l:

1;

l!.:
.:
I -
L.': 8 . '
i -
vt

.

:

;

C.

iii.

, .,

!.	i
; ̂'	r;-

iL.i,

Ij:

,<S

r.:

GENERAL DIVISION j

b

1';;.

,..I, F?.

ON APPEAL FROM THE SUPREME COURT OF NORFOLK. ISLAND	L.',
p-
; ; L

BETWEEN: JOHN TERRENCE BROWN	. .
.~,

Appellant	.:.
'C. . ' .< : .

AND: THE ADMINISTRATION OF

NORFOLK ISLAND

,<

.,.

:i

First respondent	...~
r-; , ,.
WILLIAM ARTHUR BLUCHER Second respondent ROSEMARIE GAYE EVANS Third respondent GEORGE CHARLES SMITH Fourth respondent NEVILLE CHARLES CHRISTIAN
-	Fifth respondent

CORAM :	BLACK C.J., LOCKHART AND BEAUMONT JJ.
m:	7 NOVEMBER 1991

WHERE MADE: SYDNEY

Order 36 of the Federal Court Rules.

MINUTE OF ORDER

THE COURT ORDERS:

The appellant	to pay the costs of all respondents of
the appeal.

Note: Settlement and entry of orders is dealt with in

I+
L..
,.

I..

C..
I'~
i:. , , .

!, .

[$	:,
2;-
c,.

IN THE FEDERAL COURT OF AUSTRALIA ) L;;

; , : : p

)	I<
, .

NEW SOUTH WALES DISTRICT REGISTRY ) No. G621 of 1990

1   i;

GENERAL DIVISION	1	P-:
L-
L;.!

ON APPEAL FROM THE SUPREME COURT OF NORFOLK ISLAND :,;F

..
r.;.

B E T W E E N:	JOHN TERRENCE BROWN	f ? ?
...
.. ,  -:':
Appellant	... . -.

AND: THE ADMINISTRATION OF .. >

. .

NORFOLK ISLAND

, .	..~	,,
.	.

First respondent	I .
WILLIAM ARTHUR BLUCHER	1:
r. ,.
l?:
Second respondent
ROSEMARIE GAYE EVANS	1 . .
. ; l
Third respondent	, .
P. .. .::
r. '<
GEORGE CHARLES SMITH	t.:
> ; \

l .... . .

I

Fourth respondent

NEVILLE CHARLES CHRISTIAN	1
Fifth respondent	I..~

. ..

1 .

l CORAM: Black C.J., Lockhart and Beaumont JJ.

l	r"'
i	L:,

i PLACE : Sydney

I?

m:	7 November, 1991.	I	..
-.
L.
.. .

.	.	,
. .
..	. ..

REASONS FOR JUDGMENT .,.

(On application for costs)	:EL,.%: ;
l:.?

BLACK C.J. AND LOCKHART J.

1. 3 ,:

When it allowed this appeal in part the Court reserved the

,. ...

, .

. .

. .

costs and gave liberty to the parties to make submissions in

,,

. .

,..

writing on that question. We have considered those

. . (.'

submissions.

.	-.
.	.

. . .. ;

C;:

:i

1 . . . -

. .

I	.	:	1	C	.	?	i
f ''f
i	.::

Morling C.J., who heard the case at first instance, made no order for costs. In its written submission, the Administration informed the Court that this was because the parties had so agreed, all the parties being indemnified by the Administration in relation to the costs of those proceedings on a solicitor and client basis. Presumably this arrangement was made because of the general importance to Norfolk Island of the issues raised. But the arrangement was evidently confined to the proceedings at first instance and did not extend to Mr. Brown's costs of any subsequent appeal.

Mr. Brown nevertheless did appeal from the judgment of Morling C.J. and maintained that the second to fifth respondents had received remuneration that was not authorized by the Norfolk Island Act, 1979 and that on the true construction of the Act, and in the events that had happened, those respondents had vacated their offices as members of the Legislative Assembly.

Whatever the position as to the costs of the proceedings	before Morling C.J., the Administration submits that its costs	of the appeal should be paid by the appellant. The appellant,
on the other hand, submits that the costs of the appeal ought to be paid by the Administration.
The appellant succeeded on one issue in the appeal in that the Court, by a majority, declared that the determination of the Remuneration Tribunal made on 18 November, 1988 did not apply

I::;,
!:*&
$2.

p,.y

)'I

;.::	P :l
t..'
. ..
i :. ?. ,
';L;	k..>'

in respect of the offices held by the second to fourth

respondents and the office formerly held by the third	::
I..:. ,:.
respondent. This issue was not raised directly by the	1:;;
appellant's notice of appeal but the determination of it was an essential step in any process of reasoning needed to determine the ultimate issue, namely, whether by the operation of s39(2)(e) of the Act the second to fifth respondents had vacated their offices by taking remuneration otherwise than in accordance with s65 of the Act.
The Court was asked to make a separate declaration on the	, . .< ,
. . ..
issue upon which the appellant succeeded in the event that it was persuaded that the appellant's argument on that issue was correct, and it did so. But on what we take to be, for practical purposes, the ultimate and most important issue the appellant failed, as he did of course before Morling C. J. He wholly failed in his claim that second to fifth respondents
r .:
had vacated those offices as members of the Legislative	I " .;L
l::
11:
Assembly.	L. r
>..

1::

I .

; L

L.-.

c.

In these circumstances we consider that as the appellant	h '
;5::
ip.1
failed on the ultimate issue and as there is nothing to
,'..~
disentitle the Administration to its costs, the appellant	f; '
.::  .'~
...
ought to pay them. Circumstances may be envisaged where the	is'
:...
general public importance of an issue and the nature of the
, <.
.  ?
issue itself would make it just that costs should not be	-. . .
' 2 -
.  .
awarded against an unsuccessful appellant in favour of the	, .
. .
ii:
l l-  c:: .
E,
.. .
1.:
1  ;'
Administration but we do not think that such circumstances exist here. Many cases in which the Administration is a party will involve matters of general public importance to Norfolk Island and some will be of great importance, but importance of itself is not enough to displace the ordinary approach to the question of costs.
For the same reasons the second to fourth respondents, whose entitlement to office was directly in issue,, should have their costs and they should be paid by the appellant. The fifth respondent was wholly successful and his costs too should be paid by the appellant.

I certify that this and the preceding

3 pages are a true copy of the Reasons for Judgment of the Honourable Chief Justice Black and the Honourable Mr. Justice Lockhart:

IN THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY )	No.G621 of 1990
GENERAL DIVISION

ON APPEAL FROM THE SUPREME COURT OF NORFOLK ISLAND

BETWEEN: JOHN TERRENCE BROWN

Appellant

AND: THE ADMINISTRATION OF

NORFOLK ISLAND
First respondent
WILLIAM ARTHUR BLUCHER
Second respondent
ROSEMARIE GAYE EVANS
Third respondent
GEORGE CHARLES SMITH
Fourth respondent
NEVILLE CHARLES CHRISTIAN

Fifth respondent

LRAM:	BLACK C.J., LOCKHART AND BEAUMONT JJ.
W:	7 NOVEMBER 1991

REASONS FOR JUDGMENT
(On a~ulication	for costs)

BEAUMONT J.

Pursuant to liberty to apply reserved for that purpose, the parties have lodged written submissions on this question.

At first instance, Morling C.J., made no order asto

costs.

,..
l >">

I :X

Two issues were argued on the appeal. By a	1	.	,'
. . ,

majority, the appellant was successful on one issue but not on	15;
!C+:

the other.	In these circumstances, given the administrative '	:	:	:	r:5
1

context in which the present questions arose, it is

. ,

..:

. .

appropriate, in my opinion, that the appellant pay one-half of	....
i- ;
the costs of the respondents.
*.,:
,c. . : S .
i ::

It is true that the appellant did not succeed in	.. .
, . ,, ~
: . . b
...

obtaining the ultimate relief he sought. Nonetheless, he did	K
succeed on the question concerning the operation of the
b.

determination o f the Remuneration Tribunal.	This was an	12
rL;
important, discrete issue.	In my opinion, 'the appellant's	!.;:;.
i . '.
p,~;

success on that issue should be reflected in the order for ;...- r.::

I hereby certify that this and the preceding page is a true copy of the Reasons for Judgment of his Honour Mr. Justice

Beaumont .

Associate ) y r k ; d E & d .