Burns v Corbett; Gaynor v Burns (No 2)

[2017] NSWCA 36

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Burns v Corbett; Gaynor v Burns (No 2) [2017] NSWCA 36

Hearing dates:

On the papers

Decision date:

07 March 2017

Before:

Bathurst CJ; Beazley P; Leeming JA

Decision:

1. In Burns v Corbett (proceeding 2016/224875) order that Mr Burns pay Ms Corbett’s costs of the questions removed to the Court of Appeal, such order to include the costs of her notice of motion filed 13 February 2017.

 2. In Gaynor v Burns (proceedings 2015/251109 and 2016/204768) order that Mr Gaynor pay Mr Burns’ costs of Mr Gaynor’s notice of motion filed 13 February 2017.

Catchwords:

COSTS – application for costs by respondents to proceedings commenced in NCAT – respondents were residents of different States – Court held that NCAT not authorised to exercise judicial power over respondents – submissions on jurisdiction primarily advanced by Commonwealth and State Attorneys‑General – where one respondent being prosecuted for contempt – costs order in favour of that respondent – where other respondent had commenced two proceedings in Court of Appeal – one proceeding dismissed – other proceeding was greatly expanded beyond the threshold diversity jurisdiction point – where that respondent filed thousands of pages of fresh material – where none of that material read – where all controversial submissions advanced by that respondent were rejected – where series of procedural breaches of Court’s directions by that respondent – where none of relief in terms sought by that respondent was granted – no costs order made in favour of that respondent

Legislation Cited:

Anti-Discrimination Act 1977 (NSW), ss 49ZT, 49ST, 114
Civil Procedure Act 2005 (NSW), ss 56, 98
Constitution (Cth), ss 75(iv), 109
Judiciary Act 1903 (Cth), ss 39, 78A
Suitors’ Fund Act 1951 (NSW)
Supreme Court Act 1970 (NSW), s 44
Uniform Civil Procedure Rules 2005 (NSW), rr 1.21, 28.2, 42.1

Cases Cited:

Burns v Corbett; Gaynor v Burns [2017] NSWCA 3
Enterprise Sheet Metal Pty Ltd (in liq) v Queensland Steel and Sheet Pty Ltd [1995] 1 Qd R 511
Nassif v Fahd [2007] NSWCA 308
Ross v Lane Cove Council (2014) 86 NSWLR 34; [2014] NSWCA 50
Tagget v Sexton [2009] NSWCA 91; 255 ALR 522

Category:

Costs

Parties:

2016/224875 (Burns v Corbett)

 

Gary Burns (Plaintiff)
Tess Corbett (Defendant)
Attorney General for New South Wales (First Intervener)

 

2015/251109 and 2016/204768 (Gaynor v Burns)

  Bernard Gaynor (Appellant)
Gary Burns (First Respondent)
New South Wales Civil and Administrative Tribunal (Second Respondent)
State of New South Wales (Third Respondent in 2016/204768)
Attorney General for New South Wales (First Intervener in 2015/251109)

Representation:

Counsel:
K Nomchong SC, H Jewell, K Madgwick (Mr Burns)
P E King (Mr Gaynor)
K Richardson SC (State of New South Wales)

  Solicitors:
Allens (Mr Burns as Plaintiff in 2016/224875)
Lander & Rogers (Mr Burns as First Respondent in 2015/251109 and 2016/204768)
Robert Balzola and Associates (Ms Corbett in 2016/224875 and Mr Gaynor in 2015/251109 and 2016/204768)
Crown Solicitor for NSW (State of New South Wales and Attorney General for New South Wales)

File Number(s):

2016/224875 (Burns v Corbett)2015/251109 and 2016/204768 (Gaynor v Burns)

 Referred questions 

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law

Citation:

Burns v Corbett (No 2) [2016] NSWSC 612

Date of Decision:

26 July 2016

Before:

Campbell J

File Number(s):

2014/280109

Judgment

1. THE COURT: Following a hearing which occupied less than half a day, this Court determined that NCAT was unable to exercise judicial power to determine matters between residents of two States: Burns v Corbett; Gaynor v Burns [2017] NSWCA 3. That threshold issue arose quite simply: Mr Burns (a resident of New South Wales) had originally been the moving party in separate proceedings in NCAT against Mr Bernard Gaynor (a resident of Queensland) and Ms Therese Corbett (a resident of Victoria). There was a deal of procedural complexity, which was summarised in [98]-[106] of this Court’s judgment, and to which, regrettably, it will be necessary to return. Paragraph [107] was as follows:

“The principal submissions in this Court were advanced by the intervening Attorneys, who do not seek costs. My present view is that there should be no order as to costs in this Court. Although Ms Corbett and Mr Gaynor have been successful, they did not have primary carriage of the argument that has been dispositive. Mr Gaynor’s submissions on that issue have been rejected. Mr Gaynor had also sought to advance a suite of additional arguments which it has not been necessary to determine.”

2. On that basis, no costs orders were made. However, because this Court took the course of hearing the parties only on the preliminary, and dispositive, issue of diversity jurisdiction, advising the parties of that course at the commencement of the hearing, leave was granted to the parties to apply in the event that they sought an order as to costs.

3. Ms Corbett and Mr Gaynor have each filed notices of motion seeking cost orders in their favour. The notices of motion are supported by affidavits and written submissions. Mr Burns and the State of New South Wales have filed written submissions opposing the making of such orders, and Ms Corbett and Mr Gaynor have filed submissions in reply. The Commonwealth Attorney‑General, as an intervener, did not seek costs and made no submissions, notwithstanding his success (thereby adhering to the conventional approach taken by intervening Attorneys‑General).

4. Although the issue determined in this Court was the same, it is necessary to address each proceeding in this Court individually.

Procedural background

5. In Burns v Corbett, three questions were ordered to be determined separately pursuant to UCPR r 28.2 and removed to this Court pursuant to r 1.21 in pending proceedings in the Common Law Division relating to the enforcement (by way of contempt) of orders made by NCAT in favour of Mr Burns. Those questions were what this Court heard argument on. The Attorney General of New South Wales intervened pursuant to s 78A of the Judiciary Act 1903 (Cth). Strictly speaking, this Court determined (by answering those questions) certain aspects of Ms Corbett’s defence to a part-heard charge of contempt. The result of those answers will be that the charge will be dismissed.

6. No party suggested that this Court lacked power to make orders as to the costs of the questions. There appears to be no reason to doubt that the general power to order costs conferred by s 98 of the Civil Procedure Act 2005 (NSW) may be exercisable by this Court, in accordance with s 44 of the Supreme Court Act 1970 (NSW). A similar view was reached by the Queensland Court of Appeal in Enterprise Sheet Metal Pty Ltd (in liq) v Queensland Steel and Sheet Pty Ltd [1995] 1 Qd R 511 at 515. It is appropriate to do so, because this Court is arguably better placed than the primary judge to exercise the discretion, in respect of the costs of the separate questions, and no party has submitted to the contrary.

7. The position in Gaynor v Burns was considerably more complicated. First, the parties appear to agree that there were two proceedings pending in this Court: a summons seeking declaratory and injunctive relief which joined the State, and an appeal from an adverse costs order made by NCAT against Mr Gaynor. (There is perhaps some doubt about this, attributable to further originating processes filed in this Court by those acting for Mr Gaynor, a matter touched on in [102] of this Court’s substantive judgment. Once again, it will not be necessary to address or resolve this.)

8. Secondly, as to parties, Mr Burns was a respondent to Mr Gaynor’s appeal and to his summons. The State of New South Wales was joined by Mr Gaynor to his summons, and the Attorney General of New South Wales intervened in Mr Gaynor’s appeal pursuant to s 78A of the Judiciary Act.

9. Thirdly, the outcomes of those two proceedings were as follows. The appeal was dismissed (it may be noted that the grant of leave did not extend to any constitutional questions). None of the declarations sought in the summons was made in terms. Instead, more limited declaratory relief in favour of Mr Gaynor issued.

10. Fourthly, it is necessary to explain in more detail how the summons came to be before the Court. The summons was quite different from what had originally been contemplated when this question was first raised in NCAT. That is why none of the orders sought in it was made.

11. There was a directions hearing before the President of NCAT on 18 May 2016. Three pending matters were mentioned, including Mr Burns’ pending appeal to the Appeal Panel from a decision favourable to Mr Gaynor. The other two matters were described in the transcript as “residential tenancy matters”, and appear to have been cases pending in NCAT where the landlord and tenant were residents of different States.

12. There was a deal of discussion about how best to proceed, including the following exchange:

‘HIS HONOUR: ... [A] question under section 54 [of the Civil and Administrative Tribunal Act 2013 (NSW)] isn’t the best way to proceed because of the difficulties with that. What the suggestion was, was that there might be an appropriate course of having the Attorney apply for a declaration in the court. I should also mention that already in the court there are two proceedings where the same issues arises: (1) an appeal to the Court of Appeal in relation to a costs order made in the matter of Burns and Gaynor, and that has the same issue, and there’s also contempt proceedings in the matter of Burns and Corbett which raise the same issue. They were before Justice Campbell in the Common Law Division, and I don’t know whether they’ve been referred to the Court of Appeal or what’s happened at this point.

MR BALZOLA: They are being referred, President. I’m acting in the matter as well, so I understand that what’s being ...

HIS HONOUR: Proposed.

MR BALZOLA: At the moment.”

13. The Solicitor General then said:

“MR SEXTON: I think we should like a little time to look at it. I’m just wondering – I hadn’t realised that there were two matters already before the Supreme Court. I wonder if this question could be raised in those matters if they’re going to be heard in any [event] ... it’s a constitutional question which [a] court would be required to consider if anybody raises it, I think, in the course of proceedings.”

14. Pausing there, the Solicitor General’s observation was, with respect, entirely correct. The constitutional question – whether NCAT could exercise judicial power in a dispute between residents of two States – arose as a preliminary question in the pending prosecution, and was capable of arising in Mr Gaynor’s appeal from the costs order, although no such point had hitherto been taken, if the grant of leave were expanded. There was no need, in order to decide the important and threshold issue based on diversity jurisdiction for there to be additional proceedings in this Court.

15. On 25 May 2016, the three matters were relisted for directions. The Solicitor-General advised that the Attorney would not herself seek a declaration, in part in light of the pending litigation in the Supreme Court. After an explanation, there was the following exchange:

“PRESIDENT: I can understand why the Attorney General may see it as not her role to seek a declaration or take any other steps but to participate insofar as it relates to the jurisdiction of the tribunal.

SOLICITOR GENERAL: I think that’s our position, your Honour.”

16. After counsel for Mr Burns stated that he was quite content for the tribunal to hear the matter, the President then stated:

“PRESIDENT: Mr Balzola, that seems to then leave you – if you wish to contend that the tribunal does not have jurisdiction, the course open to you then appears to be that you, for instance, might seek a declaration to that effect.”

17. There was discussion as to whether Mr Gaynor’s appeal presently pending in the Court of Appeal would determine that. Mr Balzola, appearing for Mr Gaynor, advised that the “preferred instruction” was to seek a declaration to that effect. The tribunal stood over the various matters, and noted that:

“the solicitor for [Mr Gaynor] … proposes to file a summons in the Supreme Court seeking a declaration that the tribunal, including the Appeal Panel, does not have jurisdiction to hear and determine the proceedings involving a matter between residents of different States.”

18. It was of course open to Mr Gaynor to take that course, although it would also have been open to this Court to determine the question removed to it from the part-heard prosecution of Ms Corbett, for whom, coincidentally, Mr Balzola also appeared. So long as Mr Burns maintained that prosecution, the issue would necessarily arise.

19. However, not only did Mr Gaynor commence a separate proceeding in this Court, he sought to expand the issues for determination, going substantially beyond the matters raised in NCAT. The extent of the expansion is apparent from Mr Burns’ submission opposing a costs order in favour of Mr Gaynor. Mr Burns pointed to Mr Gaynor’s filing and serving no fewer than 2,679 pages of material, including material which was late and served without leave. Many volumes of affidavits were served on behalf of Mr Gaynor. These were directed to a number of other issues, including some said to be arising under the Constitution. None of this material was read. It is not necessary to summarise the material, or the issues to which it was directed.

The hearing in this Court

20. Ms Corbett, in accordance with directions made by the Registrar of the Court of Appeal, filed and served submissions and a chronology, and appeared by junior counsel on 30 November 2016. Her written submissions in chief were short (seven pages). After dealing with uncontroversial matters, the submissions observed that “the matter before both the ADT and NCAT was subject to s 75(iv) of the Constitution. The matter therefore falls within the original jurisdiction of the High Court”. The submissions added, without any further elaboration, that:

“The defendant relies on Sunol v Collier and submits that in the circumstances of this matter, a resolution involves the exercise of Federal judicial power which has not been or was not conferred on either the ADT or NCAT by either the Commonwealth or the State. As the matter therefore attracted Federal jurisdiction, the whole of the jurisdiction being exercised is Federal: Felton v Mulligan.

In the premises, neither the ADT nor NCAT had jurisdiction to hear the matter brought by the plaintiff.” [citations omitted]

21. The submissions went on to deal with a contention as to the “lack of extra‑territorial effect of the [Anti-Discrimination Act 1977 (NSW)]” and a jurisdictional issue said to arise under the Service and Execution of Process Act 1992 (Cth) and the submission that the certificate registered with the Supreme Court did not engage s 114 of the Anti-Discrimination Act.

22. At the hearing on 30 November 2016, counsel for Ms Corbett did not seek to elaborate any submissions. Her counsel said, with commendable candour, that “having prepared my submissions before I saw the submissions from the two Attorneys, I feel as though mine probably fall within the lay category”. With respect, nothing resembling the submissions accepted by this Court is to be found in Ms Corbett’s submissions. That said, it was open to Ms Corbett, if she expected an intervention in her interest by the Commonwealth Attorney, to conserve her resources and leave the interveners to take primary carriage of the submissions.

23. Counsel for Mr Gaynor took a very different course. The extent to which his written submissions went beyond the threshold jurisdictional issue may be seen from the concluding paragraph of his written submissions in chief, summarising the bases on which this Court’s intervention was sought:

“In the present case the grounds of that proposed intervention are:

i. that the diversity jurisdiction of the High Court of Australia is engaged by the matter under Constitution section 75(iv) precluding the exercise of jurisdiction by the Tribunal which NCAT has no power to resolve;

ii. that federal jurisdiction is engaged in the case of Mr Gaynor by his response in each matter brought against him by Mr Burns that his personal thoughts and comments on his website located in Queensland picked up and in some cases broadcast by Mr Burns in NSW are protected by the freedom of political communication, and also by the freedom of religion in Constitution section 116 and that NCAT has no power to resolve such causes;

iii. that NSW lacks extraterritorial power to legislate with respect to homosexual acts or vilification outside its territorial limits and in Queensland in particular which has its own regime of laws addressing the same subject matter such that Anti-Discrimination Act 1977 section 49ZT and 49ST either as a matter of proper construction of the laws or if such laws do on their proper construction range across the country in conflict with the laws of other States are invalid;

iv. that in each case the actions alleged against the Plaintiff by the Defendant are not public acts within the meaning of Anti-Discrimination Act 1977 section 49ZT and 49ST;

v. that section 49ZT and 49ST are invalid to the extent that each prevents placement by Mr Gaynor on his own website in Queensland of his personal views based upon his faith and military experience about sexual relationships and religion;

vi. that the NCAT process and orders were not duly served under Service and Execution of Process Act 1993 in Queensland on the Appellant;

vii. the proceedings in NCAT of the Defendant in this and related matters is an abuse of process of NCAT and action thereupon should be prohibited or stayed by order of this Honourable Court.”

24. Further, unlike counsel who appeared for Ms Corbett, counsel for Mr Gaynor addressed the Court on the threshold question of jurisdiction based on his residency in Queensland.

25. Every aspect of Mr Gaynor’s submissions, to the extent that they were controversial, was disavowed by the intervening Commonwealth Attorney‑General. Every aspect of Mr Gaynor’s written and oral submissions, to the extent they were controversial, was rejected by this Court: at [50]-[56].

The parties’ submissions

26. Ms Corbett seeks an order that Mr Burns pay her costs of the questions answered by the Court of Appeal. In support, Mr Balzola has referred to the procedural history of the question determined separately in the Court of Appeal. He said that Ms Corbett complied with orders for the filing of submissions in chief and in reply, and prepared for the hearing. He added that by its orders made on 3 February 2017, this Court has “found the defendant to be successful in her cause”.

27. Ms Corbett’s written submissions refer to that evidence, which are signed by her solicitor “(for) Counsel for the defendant”. They say that she “was required to appear at the hearing and did so”. They say that Ms Corbett accepted and adopted the submissions of the Commonwealth as they accorded with her position. They add:

“the defendant’s defence as to the want of jurisdiction of the Supreme Court … to find her in contempt has been made out. She was therefore the successful party”.

28. There has never been any suggestion that the Supreme Court lacks jurisdiction. That submission was presumably intended to convey that Mr Burns’ prosecution for contempt in the Supreme Court must fail because the order made by NCAT that Ms Corbett apologise to him is unenforceable.

29. Ms Corbett submits that she was entirely successful, and so in accordance with the general rule is entitled to her costs, there being no disentitling conduct on her part. She submits that by adopting the Commonwealth’s submissions, she was bound by them, and to the extent that they were unsuccessful, it would have been open to seek an order for costs against her. Conversely, she adds that having regard to the objects in s 56 of the Civil Procedure Act 2005 (NSW), “if a party wishes to adopt the course of another party in the proceedings rather than embark on its own path taking up further time and cost, it should be encouraged to do so and should not be penalised on its costs”.

28. Mr Burns opposes the order for costs sought by Ms Corbett. He says that Ms Corbett did not have primary carriage of the argument on jurisdiction. He says that Ms Corbett did not adopt and accept the submissions of the Commonwealth in their entirety. He says that Ms Corbett expressly adopted what was said to be “the effect of s 75(iv)” of the Constitution, being a reference to the Commonwealth’s primary submission, which this Court rejected, and that she “did not endorse or adopt the Commonwealth’s submission as to the combined effect of section 109 of the Constitution and section 39(2) of the Judiciary Act 1903 (Cth) which was dispositive of the matter”.

29. Mr Burns submits that if this Court were to make an order for costs in favour of Ms Corbett, it should be assessed summarily in the amount of $500, having regard to the fact that he bore the burden of preparing the court books, and that her submissions in this Court “are substantially a reproduction of the submissions prepared by Ms Corbett before Campbell J, save for some additional paragraphs as to the diversity jurisdiction”. As a further fallback, Mr Burns seeks an order under the Suitors’ Fund Act 1951 (NSW), saying that the proceedings are akin to an appeal. He also relies on what he says is “the chilling effect of a costs order against an individual complainant who is effectively making a complaint in the public interest”, and the restrained approach to costs orders in equal opportunity matters in NCAT and its predecessors.

30. In reply, Ms Corbett contends that the reference to s 75(iv) of the Constitution made by counsel for the defendant “should be taken as a reference to the whole of the Commonwealth’s submissions”. She also denies that the approach to costs orders in the tribunal is applicable to proceedings in this Court. Ms Corbett does not dispute that the submissions filed in this Court substantially corresponded with those previously relied on in the Common Law Division in response to the contempt prosecution.

31. In relation to Mr Gaynor, Mr Burns seeks no order as to costs, save that he asks that no fewer than six interlocutory costs orders in his favour in Mr Gaynor’s appeal not be disturbed. Save to assert that costs should be divided by what he says is “the event”, Mr Gaynor’s submissions in reply do not dispute the existence of those orders or their characterisation.

32. Mr Gaynor submits that he should obtain costs in both proceedings (the appeal and the summons) “in which he succeeded, on the ground costs follow the event and there has been no disentitling conduct”. It is to be recalled that the appeal was dismissed, and none of the orders sought by him were made. He also makes submissions about what he says is his success within NCAT, which need not be summarised, because the only question with which we are seized is the costs of proceedings in this Court.

33. Mr Gaynor observes that the State chose to intervene as a party in the proceedings pending in NCAT, and was joined as a party to his summons.

34. Mr Gaynor submits that “the most significant basal principle guiding the proper exercise of the costs discretion is the result of the litigation”. As much may be accepted: see UCPR r 42.1, although the discretion to make a different order as to costs is a broad one. However, Mr Gaynor points to what he says is his ultimate success in relation to complaints made by Mr Burns, and seeks to put to one side the dismissal of his appeal and the limited declaratory relief he obtained.

35. Mr Gaynor submits there was no disentitling behaviour on his part, and that at most he should be deprived of a small proportion of his costs (he suggests, 10%). In response to Mr Burns’ submissions concerning the volume of material relied upon, he submits:

“That material and the detailed submissions were all necessary in the proper conduct of the matter on each issue properly raised in this Court, as directed for the most part by orders made by consent, by the Registrar. It was not suggested for instance by Mr Burns or the State, eg under Civil Procedure Act 2005 section 62, that a preliminary point was available or should be addressed initially to save costs eg in the terms adopted at the trial by the Court itself, or by obviating such orders of the Registrar, or an anticipated waste of costs, or the careful preparatory work by the Applicant and his legal team of all the issues before the Court of Appeal.” [emphasis in original]

38. It will not be necessary to summarise the submissions of Mr Burns in response, in any further detail, or to summarise those of the State.

Gaynor v Burns – decision

39. Accepting that the substance of this Court’s decision is one which is favourable to Mr Gaynor and adverse to Mr Burns, it by no means follows that the appropriate exercise of the discretion as to costs is an order for all or any of his costs in this Court in his favour. On any view of the matter, Mr Gaynor’s success has been qualified: his appeal was dismissed, and the broader relief sought by him has been rejected.

40. There are numerous examples of appellants who are wholly or partially successful not receiving a costs order in their favour: see for example Tagget v Sexton [2009] NSWCA 91; 255 ALR 522 at [89] and Ross v Lane Cove Council (2014) 86 NSWLR 34; [2014] NSWCA 50 at [83]. In Nassif v Fahd [2007] NSWCA 308, this Court, after stating that the discretion was broad, and could in an appropriate case result in a costs order against a successful party, observed that (at [2]):

“The most important consideration is whether costs were reasonably incurred so as to achieve the outcome which the court’s decision has established was just.”

41. The following considerations confirm that the appropriate exercise of the discretion as to costs is to make no order, with the intent that Mr Gaynor bear his own costs of the proceedings in this Court.

42. First, the costs incurred by Mr Gaynor in this Court were entirely of his own making. After becoming aware of the point which had arisen, and which was to be agitated in the Court of Appeal by Ms Corbett, it would have been possible for him to await its outcome, which, as it turns out, would have been favourable to him. Instead, he sought to amend his pending appeal, and to commence fresh proceedings in the original jurisdiction of this Court, in order to participate in the resolution of that issue. He was of course entitled to take that course, if he were so minded. However, the point of present relevance is that Mr Gaynor’s involvement, so far as the materials available to this Court disclose, post-dated the crystallisation of the issue in Ms Corbett’s defence and the idea that it be removed to this Court, and was of his own making.

43. Secondly, a great deal of the costs incurred by Mr Gaynor are not attributable to the issue determined by this Court. In his appeal, the issue never extended beyond an application to expand the grant of leave. In his summons, thousands of pages of evidence were filed and served in aid of additional issues including constitutional issues, which never arose and which could only have arisen in the event that Mr Gaynor’s residence in Queensland were not determinative.

44. Thirdly, to the extent that Mr Gaynor made submissions which went beyond those made by the Commonwealth Attorney‑General, they were rejected.

45. Fourthly, although this Court’s acceptance of one of the Commonwealth Attorney’s submissions is a result which is favourable to Mr Gaynor, it is to be recalled that Mr Gaynor’s appeal was dismissed, and the broader relief sought by him was refused.

46. Fifthly, s 56 of the Civil Procedure Act points against a costs order in his favour. This is a case where the “real issue” in the proceeding was identified in the two directions hearings in NCAT conducted by the President, as well as in the question removed to this Court in the contempt prosecution. Parties to civil litigation are obliged by s 56(3) of that Act to assist the Court to facilitate the just, quick and cheap resolution of the real issues. The legal practitioners who act for a party are obliged by s 56(4) not to cause that party to be in breach of duty. It is neither possible nor necessary to determine which of those duties has been breached. But it is impossible to resist the conclusion that there has been a breach of the duties owed by client or practitioner to this Court by the course which has been taken. It is altogether remarkable for thousands of pages of evidence to have been served in support of a hearing in this Court’s original jurisdiction. It is altogether remarkable for six interlocutory costs orders to have been made against Mr Gaynor in the course of readying his appeal from NCAT. It is quite plain that the summons upon which Mr Gaynor ultimately sought to rely bears scant resemblance to what NCAT was told by his solicitor when the point first arose.

47. Sixthly, it is true that the State Attorney intervened in three proceedings pending in NCAT, including one involving Mr Gaynor. But costs in respect of those proceedings are not to the point. This judgment deals with the costs of the proceedings in this Court. The only reason why the State is a party to one of the proceedings involving Mr Gaynor in this Court is because Mr Gaynor joined it. In substance, the Solicitor General, appearing for the Attorney General intervening in the appeal, and appearing for the State joined by Mr Gaynor to his summons, acted as an intervener on a pure question of constitutional law of general application.

48. In light of those considerations, it would not be right to shift the burden of any part of the costs incurred by Mr Gaynor to any other party. The appropriate order as to Mr Gaynor’s costs in this Court is that there be no order, with the intent that he bears his own costs.

Burns v Corbett – decision

49. The position in the case of Ms Corbett is different. Ms Corbett was charged with contempt, and was entitled to appear by counsel. As it happens, she enjoyed the good fortune of eliciting very substantial support from the Attorney-General of the Commonwealth. That became quite clear when detailed written submissions, signed by the Commonwealth Solicitor‑General, were served, well in advance of the hearing.

50. No later than then, it was open to Ms Corbett to submit to the outcome of the separate questions in this Court. There is no reason to think that had she asked to be excused from attendance, her request would not have been granted. That said, Ms Corbett was the defendant in proceedings for contempt commenced by Mr Burns, and was entitled to appear at the hearing in this Court. For example, it was appropriate for her to retain a lawyer to report on the way the hearing developed, if only so that she might, if so advised, review her plea of not guilty. It follows that it is not necessary to determine the arid dispute whether Ms Corbett should be taken to have adopted the entirety of the submissions of the Commonwealth, or merely the Commonwealth’s primary (and unsuccessful) submission.

51. It is true that, as Mr Burns submits, there were broader questions arising on the questions referred to the Court of Appeal. However, that does not in our view disentitle Ms Corbett from some costs in her favour in respect of those questions. Strictly, the hearing in this Court was an aspect of the determination of one threshold element of Ms Corbett’s defence of Mr Burns’ prosecution. It is for this reason also that the questions of public interest on which Mr Burns relies have little weight.

52. The quantum of those costs is a matter for agreement or assessment. To the extent that Mr Burns draws attention to the similarity between Ms Corbett’s submissions in the Common Law Division and in this Court, that is a matter for assessment. The assessment should proceed on the basis that the submissions, written and oral, advanced by Ms Corbett played no part in the determination of the issues in this Court. That is not to deny the proposition that it was reasonable for Ms Corbett to appear in this Court, at least in order to enable her to be apprised of the nature of the hearing and its outcome. To be clear, whether that reflects the costs of a solicitor, or of junior counsel, or both, is a matter for assessment, and these reasons should not be read as bearing upon that question.

53. The Suitors’ Fund Act extends to proceedings “in the nature of an appeal”. It is far from clear that the removal of a question of law to this Court is a proceeding “in the nature of an appeal” (there remains a single proceeding to which Ms Corbett is a party, namely, Mr Burns’ prosecution of her for contempt, and there is no decision or order that this Court has been asked to set aside or quash). However, it is not necessary to decide this point, and inappropriate to do so in the absence of any submissions from either party. Given that Mr Burns took the serious step of prosecuting Ms Corbett for contempt, and maintaining that prosecution in the light of the intervention of the Commonwealth Attorney‑General, and played no active role in the dispositive submissions on the issue removed to this Court, we do not regard this as an appropriate case for a certificate.

54. For the foregoing reasons, Ms Corbett is entitled to an order in respect of her costs in this Court.

Costs of the applications for costs

55. The final question arises as to the costs of the applications for costs made by Ms Corbett and Mr Gaynor. The issue is discrete. The State and Mr Burns have been put to the expense of responding to the motions brought by Ms Corbett and Mr Gaynor. Ms Corbett has obtained a costs order, and Mr Gaynor has failed.

56. In the case of Ms Corbett, there is nothing to displace the ordinary rule that costs follow the event. Mr Burns should pay Ms Corbett’s costs of her application for costs.

57. In the case of Mr Gaynor, Mr Gaynor should pay Mr Burns’ costs of responding to his application for costs. The tenor of the State’s submission was that, in substance, it was an intervener. It did not seek a costs order in its favour, and resisted an order for costs against it. Although unsuccessful, Mr Gaynor should not be ordered to pay the State’s costs of his motion.

Orders

58. The Court’s orders are:

1. In Burns v Corbett (proceeding 2016/224875) order that Mr Burns pay Ms Corbett’s costs of the questions removed to the Court of Appeal, such order to include the costs of her notice of motion filed 13 February 2017.

2. In Gaynor v Burns (proceedings 2015/251109 and 2016/204768) order that Mr Gaynor pay Mr Burns’ costs of Mr Gaynor’s notice of motion filed 13 February 2017.

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Amendments

31 March 2017 - [7] - fourth line, "against Mr Burns" replaced with "against Mr Gaynor"

Decision last updated: 31 March 2017