Carey v Commissioner for Consumer Protection
[2013] WASCA 195 (S)
•28 APRIL 2014
CAREY -v- COMMISSIONER FOR CONSUMER PROTECTION [2013] WASCA 195 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 195 (S) | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:14/2012 | ON THE PAPERS | |
| Coram: | MARTIN CJ PULLIN JA NEWNES JA | 28/04/14 | |
| 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 | ||
| B | |||
| PDF Version |
| 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
- 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 Commissioner for Consumer Protection [2013] WASCA 195
Phillips Fox (a firm) v Westgold Resources NL [2000] WASCA 85
1 REASONS OF THE COURT: This appeal was dismissed (Carey v Commissioner for Consumer Protection [2013] WASCA 195). However, the appellant resists the usual order that he pay the respondent's costs because the respondent filed a notice of contention which was also dismissed. The appellant contends that allowance should be made for his success in relation to the issues raised by the notice of contention by reducing the respondent's entitlement to costs to 75% of those to which he would otherwise be entitled.
Principles relating to costs on appeal
2 The general principles applicable to issues of this kind are not in doubt. The court has a general discretion with respect to the award of costs (Supreme Court Act 1935 (WA), s 37). However, that discretion will generally be exercised by ordering that the successful party recover his or her costs from the unsuccessful party (Rules of the Supreme Court, O 66 r 1(1)). Where a successful party has increased costs by introducing an issue or issues on which he or she has failed, the court may order that party to pay the costs relating to that issue or issues (O 66 r 1(3)). Where a generally successful party has failed on an issue or issues in circumstances in which it would be appropriate that he or she bear the costs on those issues, rather than require the taxation of separate and discrete issues, the court may reduce the costs to which the successful party would otherwise be entitled by a percentage which reflects the likely contribution which the costs with respect to that issue or issues made to the overall costs of the proceedings (Phillips Fox (a firm) v Westgold Resources NL [2000] WASCA 85 [28] (Owen J). However, the discretion to apportion costs in this way will generally only be exercised 'where there are discrete and severable issues upon which the generally successful party has failed, and which have added to the cost of the proceedings in a significant and readily discernible way': Amaca Pty Ltd (formerly James Hardie & Co Pty Ltd) v Hannell [2007] WASCA 158 (S) [7]; Bowen v Alsanto Nominees Pty Ltd [2011] WASCA 39 (S) [8].
3 So, as this court put the matter in Bowen v Alsanto Nominees Pty Ltd (at [6] - [7]):
The court may, in the exercise of its discretion, order that a successful party recover only a portion of its costs where that party has been unsuccessful in respect of certain discrete issues. But that should not be done as a matter of course. To embark as a general practice upon an analysis of which party was successful on each issue, or necessarily to deprive a successful party of some portion of its costs if it has lost on a particular issue, would be likely to add further uncertainty and complexity to the outcome of litigation, derogate from the prospect of settlement, and oblige the court to hear lengthy and frequent arguments in relation to costs as an additional burden on its resources and the costs of the parties: see MacKinnon v Petersen (Unreported, NSWSC, 19 April 1989) (Cole J); Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 [67] - [68] (McHugh J). Litigation is time-consuming, expensive and burdensome enough already.
In addition, while parties should be encouraged to consider carefully what matters they put in issue, justice may not be served if by too ready a resort to deciding questions of costs according to success on particular issues, parties are dissuaded by the risks of costs from canvassing all issues which might be material to the decision in the case: Doric Products Pty Ltd v Lockwood Security Products Pty Ltd [2002] FCA 282; NRMA Ltd v Morgan (No 3) [1999] NSWSC 768 [24].
This case
4 The appeal was brought from the decision of a judge dismissing an appeal from the decision of a magistrate convicting the appellant on five counts of making a false or misleading representation concerning the use to which land was capable of being put contrary to s 12(2)(b) of the Fair Trading Act 1987 (WA) (the Act). The appellant did not make the representations the subject of the charges. However, he was a director of a corporation which was found to have made the representations. He was found to be liable for the actions of the corporation by virtue of s 81(1) of the Act which, at the relevant time, provided:
81. Offences by directors, employers, and vicarious liability
(1) Where a corporation within the meaning of the Corporations Act 2001 of the Commonwealth or any other body of persons, corporate or unincorporate, is convicted of an offence against this Act, each person who, at the time of the commission of that offence, was a director of the corporation or was the manager, secretary or other similar officer of that body, or who purported to act in any such capacity, is also guilty of an offence unless he proves -
(a) that the offence was committed without his knowledge, or that he did not authorise or permit the commission of the offence; and
(b) that he was not in a position to influence the conduct of that corporation or body or, being in such a position, could not by the exercise of reasonable diligence have prevented the commission of the offence,
and is liable to a penalty not exceeding the penalty prescribed for the offence of which the corporation or body was convicted.
The grounds of appeal
5 The grounds of appeal were restricted to issues which concerned the proper construction of s 81(1) of the Act, and its application to the facts found by the magistrate. As is apparent from the reasons of the court, those grounds required detailed consideration of the facts found by the magistrate with respect to the appellant's role in the company of which he was a director, and the events which preceded the making of the relevant representations, with particular reference to the appellant's role in those events. Although the grounds, and the argument advanced in support of those grounds, were directed only to what might be termed the second limb of the defence provided by s 81(1), concerning the capacity of the appellant to prevent the commission of the offence by the exercise of reasonable diligence, a proper appreciation of the particular role played by the appellant in the events which preceded the making of the representations was essential to a proper consideration of the grounds of appeal.
6 As was noted both on the appeal to the single judge of this court (Carey v Commissioner for Consumer Protection [2012] WASC 8 [42] – [43]), and in this court [69], the magistrate did not expressly enunciate a finding to the effect that Mr Carey had established what might be termed the first limb of the defence provided by s 81(1) of the Act by establishing either that the offence was committed without his knowledge or that he did not authorise or permit the commission of the offence. However, it seems relatively clear from the general structure of his reasons that he found one or other of those things had been established by the appellant (appeal reasons [69]). The judge at the first level of appeal considered that the magistrate's reasons should be construed as reflecting findings that the appellant had succeeded in establishing both alternatives within the first limb of the defence - namely, that the representations were made without his knowledge and that he did not authorise or permit the commission of the offences ([2012] WASC 8 [42] – [43]).
The notice of contention
7 In this context the respondent filed and served a notice of contention in these terms:
Take notice that the Respondent will be contending at the hearing of the Appeal that:
(1) The Appellant failed to prove that he did not authorise or permit the commission of the offences.
(2) The Magistrate was not satisfied that the Appellant had proved that he did not authorise or permit the commission of the offences and Murray J was in error in finding to the contrary [.]
8 It should be noted that the notice of contention did not follow the conventional form, and contend that the decision from which the appeal was brought should be upheld for reasons which differ from those enunciated by the court at first instance (Supreme Court (Court of Appeal) Rules 2005, r 33(7)). If that form had been followed, it is possible that the fundamental flaw in the notice would have been identified. The fundamental flaw in the notice arises from the fact that the first limb of the defence provided by s 81(1) of the Act is satisfied if one or other of two matters is established - that is, either that the offence was committed without the appellant's knowledge, or that the appellant did not authorise or permit the commission of the offence. The judge at the first level of appeal considered that the magistrate had found that both alternatives had been established by the appellant. The notice of contention only challenges the finding in relation to the second alternative - namely, that the appellant did not authorise or permit the commission of the offence. Accordingly, even if the notice of contention was upheld, it would have no bearing upon the availability of the defence, as the first limb of the defence was established by the finding that the offence was committed without the knowledge of the appellant. So, as formulated, the notice of contention was misconceived.
9 When this was pointed out to senior counsel for the respondent in the course of oral argument in the appeal, the respondent moved to amend the notice of contention to also contend that the appellant had failed to prove that the offence was committed without his knowledge. That application was disallowed [93] - [95]. After the motion to amend was disallowed, no substantive oral argument was directed to the notice. Accordingly, as the appellant concedes in his written submissions, only a small amount of time was spent on the issues raised by the notice of contention during the hearing of the appeal.
10 The respondent had filed written submissions in support of the notice of contention. They occupied three pages of text. They were concerned with the appellant's role in the events which preceded the making of the representations, and to that extent, were essentially concerned with factual issues raised by the grounds of appeal in any event. The appellant filed written submissions in response, occupying approximately one page of text, which essentially asserted that the magistrate and the judge at first instance were correct, and that the notice of contention did not descend to sufficient detail to suggest any reason why an appellate court should interfere with the findings of fact made by the magistrate.
Conclusion
11 In the circumstances of this case, it cannot be said that the notice of contention raised discrete and severable issues, or that the notice of contention added to the cost of proceedings in a significant and readily discernible way. The notice of contention asserted that a conclusion should be drawn from facts found by the magistrate which necessarily had to be reviewed in any event in the course of a proper consideration of the grounds of appeal. It can properly be inferred that the costs incurred by the appellant with respect to the notice of contention were minimal, being essentially limited to the preparation of written submissions occupying approximately one page, cast at a level of generality, and the small amount of time directed to the notice of contention during the hearing of the appeal.
12 In this case there is no reason why the usual order as to costs should not be made, giving the respondent his costs of the appeal. However, those costs should not extend to any costs incurred by the respondent with respect to the notice of contention, or the application to amend the notice of contention which was disallowed.
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