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

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…

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: [2014] WASCA 7 (S)
Decision Date: 19 FEBRUARY 2014

CaseChat Overview and Summary

The case of Commissioner for Consumer Protection v Carey concerns an appeal by the Commissioner for Consumer Protection against the decision of the State Administrative Tribunal in relation to costs incurred by the respondent, Carey. The dispute revolves around the entitlement of the respondent to costs of the appeal under section 105(12) of the State Administrative Tribunal Act 2004 (WA). The appeal was heard and determined by the Court of Appeal of Western Australia.

The central legal issue before the Court was whether the respondent, Carey, was entitled to the costs of the appeal pursuant to the provisions of section 105(12) of the State Administrative Tribunal Act 2004 (WA). The Court considered the statutory framework and the relevant case law to ascertain the circumstances under which costs of an appeal might be awarded to an unsuccessful respondent.

In its reasoning, the Court acknowledged that the notion of an unsuccessful respondent being granted costs is not uncommon, citing the Suitors' Fund Act 1964 (WA), section 11. The Court noted that the appeal was granted leave, which typically implies that the appellant, in this case, the Commissioner for Consumer Protection, should bear the costs of the appeal. Consequently, the Court determined that the appellant must pay the respondent's costs of the appeal, which are to be taxed accordingly.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

JUDGMENT OF THE COURT: These reasons concern the costs of the appeal in Commissioner for Consumer Protection v Carey [2014] WASCA 7. 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. Accordingly, there having been a grant of leave to appeal, the appellant must pay the respondent's costs of the appeal to be taxed.

Ratio Decidendi

Legal Principle Established

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