Commissioner for Consumer Protection v Carey

[2014] WASCA 7 (S)

JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :	THE COURT OF APPEAL (WA)
CITATION	:	COMMISSIONER FOR CONSUMER PROTECTION -v- CAREY [2014] WASCA 7 (S)

CORAM : McLURE P

BUSS JA

MURPHY JA

HEARD	:	ON THE PAPERS
DELIVERED	:	19 FEBRUARY 2014
FILE NO/S	:	CACV 162 of 2012
BETWEEN	:	COMMISSIONER FOR CONSUMER PROTECTION Appellant
AND
NORMAN PHILLIP CAREY Respondent
ON APPEAL FROM:
Jurisdiction	:	STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram	:	JUDGE D R PARRY (DEPUTY PRESIDENT) MR J JORDAN (MEMBER) MR G POTTER (SENIOR SESSIONAL MEMBER)
Citation	:	CAREY and COMMISSIONER FOR CONSUMER PROTECTION [2012] WASAT 237
File No	:	VR 63 of 2012

[2014] WASCA 7 (S)

Catchwords:

Practice and procedure - Costs - Section 105(12) of the State Administrative

Tribunal Act 2004 (WA) - Whether respondent entitled to costs of the appeal

Legislation:

State Administrative Tribunal Act 2004 (WA), s 87, s 105

Suitors' Fund Act 1964 (WA), s 11

Result:

Costs order made

Category: B

Representation:

Counsel:

Appellant	:	No appearance (on the papers)
Respondent	:	No appearance (on the papers)

Solicitors:

Appellant	:	Department of Commerce
Respondent	:	Mony de Kerloy Barristers and Solicitors

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

Commissioner for Consumer Protection v Carey [2014] WASCA 7

Shark Bay Tuna Farms Pty Ltd and Executive Director, Department of Fisheries

(WA) [2005] WASAT 206

[2014] WASCA 7 (S)

JUDGMENT OF THE COURT

1. JUDGMENT OF THE COURT: These reasons concern the costs of the appeal in Commissioner for Consumer Protection v Carey [2014] WASCA 7.

2              The appeal to this court was from a decision of the State

Administrative Tribunal (the Tribunal) in the exercise of its review jurisdiction under the State Administrative Tribunal Act 2004 (WA) (the SAT Act). The appeal to this court was pursuant to s 105 of the SAT Act. Subject to s 105(13), which is not relevant to this appeal, a party to Tribunal proceedings may appeal only if this court gives leave to appeal and the appeal can only be brought on a question of law. Section 105(12) deals with the costs of the appeal. It provides:

In the case of a decision in a proceeding coming within the Tribunal's review jurisdiction, any leave to appeal granted to the decision-maker is to be granted on the condition that the costs of each other party are to be met by the decision-maker, unless the court considers that it would be unjust or unreasonable to impose that condition, whether generally or in respect of the costs of a particular party.

3              Thus the appellant, being the decision-maker, must pay the

respondent's costs of the appeal unless this court considers that it would
be unjust or unreasonable.

4              The appellant submits it would be unjust or unreasonable to require

her to pay the respondent's costs of the appeal, the appropriate disposition being that there be no order as to costs. The respondent submits that this court should not deprive him of his prima facie entitlement to costs.

5 Section 105(12) was inserted on the recommendation of the

Legislative Council Standing Committee on Legislation: Report of the Standing Committee on Legislation in Relation to the State Administrative Tribunal Bill 2003, Report 24, October 2004 pars 9.18 - 9.20. The Standing Committee said:

The Committee is concerned to ensure that, in the cases of appeals to the proposed SAT from the decisions of government administrators (that is, local governments, Government departments or agencies), the Government administrator is not able to use its greater financial resources to appeal a decision of the SAT to the Supreme Court to the significant financial detriment of the other party or parties [9.20].

6              The relevant broader statutory context is that ordinarily SAT is a 'no

cost' jurisdiction, at least in relation to its review jurisdiction: s 87 of the SAT Act; Shark Bay Tuna Farms Pty Ltd and Executive Director, Department of Fisheries (WA) [2005] WASAT 206 [28]. The concern of

[2014] WASCA 7 (S)

JUDGMENT OF THE COURT

the Standing Committee was that persons affected by government decisions may be deterred from exercising their right to a SAT review because of the possibility of an adverse costs order against them in any appeal to the Supreme Court.

1. Further, the notion of an unsuccessful respondent to an appeal having its costs paid is not unusual. See Suitors' Fund Act 1964 (WA), s 11.

8              What is unjust or unreasonable so as to deprive a respondent of its

entitlement to costs under s 105(12) is a value judgment to be made having regard to all relevant circumstances. The appellant relies on a number of related matters. First, this court held that the appellant's original decision was the only decision which, as a matter of law, was open on the facts. Thus the error of law was fundamental not merely technical. Second, the appeal concerned matters of significant public interest, being the protection of the interests of consumers of real estate services. Third, as the evidence overwhelmingly established that the respondent was no longer a person of good character and repute and a fit and proper person to hold a real estate agents licence, the appellant (the regulator) should not be required to meet the costs of protecting the public interest. Finally, the numerous other legal proceedings commenced by or involving the respondent and entities controlled by him indicate that he possesses substantial financial resources thereby preventing any suggestion that the appellant had used her greater financial resources to the significant financial detriment of the respondent.

9              We are not persuaded that those matters, individually or collectively,

make it unjust or unreasonable so as to deprive the respondent of his prima facie entitlement to the costs of the appeal. The respondent did not act unreasonably in seeking SAT review of the appellant's decision. Her reasons for decision were not a model of precision or clarity and she applied the wrong test. Further, it was not unreasonable for the respondent to defend the appeal brought by the appellant. The real issues on which the appellant ultimately succeeded were only clearly identified as a result of exchanges between the bench and bar table, resulting in a successful application by the appellant to add a further ground of appeal. In all the circumstances, it can fairly be said that the costs incurred by the respondent in his defence of the appeal were materially contributed to by a lack of analytical precision in the appellant's conduct of proceedings and the errors of law made by the Tribunal.

1. Accordingly, there having been a grant of leave to appeal, the appellant must pay the respondent's costs of the appeal to be taxed.