CAREY -v- COMMISSIONER FOR CONSUMER PROTECTION [2013] WASCA 195 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASCA 195 (S)
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:14/2012	Heard:	ON THE PAPERS
Coram:	MARTIN CJ PULLIN JA NEWNES JA	Delivered:	28/04/14
No of pages:	7	Judgment Part:	1 of 1
Result:	Appellant to pay respondent's costs of the appeal save and except for the costs incurred in relation to the notice of contention
Category:	B
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Parties:	NORMAN PHILLIP CAREY COMMISSIONER FOR CONSUMER PROTECTION
Catchwords:	Costs Appellant unsuccessful but successfully challenged notice of contention Whether respondent's entitlement to costs should be reduced to take into account unsuccessful notice of contention Whether issues raised by notice were discrete and severable Turns on own facts
Legislation:	Fair Trading Act 1987 (WA), s 12, s 81(1) Rules of the Supreme Court, O 66 r 1 Supreme Court (Court of Appeal) Rules 2005, r 33 Supreme Court Act 1935 (WA), s 37
Case References:	Amaca Pty Ltd (formerly James Hardie & Co Pty Ltd) v Hannell [2007] WASCA 158 (S) Bowen v Alsanto Nominees Pty Ltd [2011] WASCA 39 (S) Carey v Commissioner for Consumer Protection [2012] WASC 8 Carey v Commissioner for Consumer Protection [2013] WASCA 195 Phillips Fox (a firm) v Westgold Resources NL [2000] WASCA 85

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : CAREY -v- COMMISSIONER FOR CONSUMER PROTECTION [2013] WASCA 195 (S) CORAM : MARTIN CJ

PULLIN JA

NEWNES JA

HEARD : ON THE PAPERS DELIVERED : 28 APRIL 2014 FILE NO/S : CACR 14 of 2012 BETWEEN : NORMAN PHILLIP CAREY

Appellant

AND

COMMISSIONER FOR CONSUMER PROTECTION

Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : MURRAY J

Citation : CAREY -v- COMMISSIONER FOR CONSUMER PROTECTION [2012] WASC 8

File No : SJA 1024 of 2011

Catchwords:

Costs - Appellant unsuccessful but successfully challenged notice of contention - Whether respondent's entitlement to costs should be reduced to take into account unsuccessful notice of contention - Whether issues raised by notice were discrete and severable - Turns on own facts

Legislation:

Fair Trading Act 1987 (WA), s 12, s 81(1)

Rules of the Supreme Court, O 66 r 1
Supreme Court (Court of Appeal) Rules 2005, r 33
Supreme Court Act 1935 (WA), s 37

Result:

Appellant to pay respondent's costs of the appeal save and except for the costs incurred in relation to the notice of contention

Category: B

Representation:

Counsel:

Appellant : Mr M M Mony De Kerloy

Respondent : Mr W B Zichy-Woinarsky QC &

Mr M G S Crowley

Solicitors:

Appellant : Mony de Kerloy Barristers and Solicitors

Respondent : Department of Commerce

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

Amaca Pty Ltd (formerly James Hardie & Co Pty Ltd) v Hannell [2007] WASCA 158 (S)
Bowen v Alsanto Nominees Pty Ltd [2011] WASCA 39 (S)
Carey v Commissioner for Consumer Protection [2012] WASC 8
Carey v…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] WASCA 195 (S)
Decision Date: 28 APRIL 2014

CaseChat Overview and Summary

The matter of Carey v Commissioner for Consumer Protection was heard in the Federal Court of Australia. The appellant, Mr. Carey, had challenged the respondent's decision to issue a notice of contention, arguing that the respondent was not entitled to costs as the issues raised were discrete and severable. The court was tasked with determining whether the respondent's entitlement to costs should be reduced to take into account the unsuccessful notice of contention, as well as whether the issues raised by the notice were discrete and severable.

The legal issues that arose in this case centred around the principles of costs in litigation and the circumstances under which a party may be entitled to recover costs from another party. The appellant argued that, despite his unsuccessful challenge to the notice of contention, the respondent's entitlement to costs should be reduced due to the unsuccessful notice of contention. The respondent, on the other hand, contended that the issues raised by the notice were discrete and severable, and thus the court should not reduce the respondent's entitlement to costs. The court had to determine whether the issues raised by the notice of contention were indeed discrete and severable, and whether this fact should impact the respondent's entitlement to costs.

The court found that the issues raised by the notice of contention were indeed discrete and severable, and that the respondent was entitled to costs for the appeal. However, the court also determined that the respondent's entitlement to costs should be reduced to exclude those costs incurred in relation to the unsuccessful notice of contention. The court held that the fact that the issues raised by the notice were discrete and severable did not necessarily mean that the respondent was not entitled to any costs at all. Instead, the court considered the overall fairness of the situation and determined that the respondent's entitlement to costs should be reduced in light of the unsuccessful notice of contention. The court concluded that the appellant should pay the respondent's costs of the appeal, save and except for the costs incurred in relation to the notice of contention.

In conclusion, the court held that the respondent was entitled to costs for the appeal, but that the respondent's entitlement to costs should be reduced to exclude those costs incurred in relation to the unsuccessful notice of contention. The court found that the issues raised by the notice were discrete and severable, but that this fact did not necessarily mean that the respondent was not entitled to any costs at all. The court considered the overall fairness of the situation and determined that the respondent's entitlement to costs should be reduced in light of the unsuccessful notice of contention. The final orders of the court were that the appellant should pay the respondent's costs of the appeal, save and except for the costs incurred in relation to the notice of contention.

Orders

Orders of the court

Appellant to pay respondent's costs of the appeal save and except for the costs incurred in relation to the notice of contention

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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