Commissioner for Equal Opportunity v ADI Limited - [2007] WASCA 261 (S)

JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :	THE COURT OF APPEAL (WA)
CITATION	:	COMMISSIONER FOR EQUAL OPPORTUNITY -v- ADI LIMITED [2007] WASCA 261 (S)

CORAM

: MARTIN CJ

WHEELER JA
PULLIN JA

HEARD	:	1 AUGUST 2007
DELIVERED	:	28 NOVEMBER 2007
SUPPLEMENTARY
DECISION	:	29 JANUARY 2008
FILE NO/S	:	CACV 138 of 2005
BETWEEN	:	COMMISSIONER FOR EQUAL OPPORTUNITY First Appellant
TRADES AND LABOUR COUNCIL OF WESTERN AUSTRALIA Second Appellant
WESTERN AUSTRALIANS FOR RACIAL EQUALITY INC Third Appellant
AND
ADI LIMITED First Respondent
ADI MUNITIONS PTY LIMITED Second Respondent
ADI ADVANCED SYSTEMS PTY LTD Third Respondent

[2007] WASCA 261 (S)

THALES UNDERWATER SYSTEMS PTY LTD
Fourth Respondent
THALES TRAINING AND SIMULATION PTY LTD
Fifth Respondent

ON APPEAL FROM:

For File No	:	CACV 138 of 2005
Jurisdiction	:	STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram	:	JUDGE J ECKERT (DEPUTY PRESIDENT) MS J TOOHEY (SENIOR MEMBER) BRIG A WARNER (SENIOR SESSIONAL MEMBER)
Citation	:	ADI LIMITED & ORS and COMMISSIONER FOR EQUAL OPPORTUNITY & ORS [2005] WASAT 259
File No	:	ET 31 of 2004
Catchwords:

Practice and procedure - Costs - First appellant is holder of a statutory office - Whether public interest sufficient to warrant divergence from the principle that costs should follow the event

Legislation:

Equal Opportunity Act 1984 (WA), s 135
Legal Practice Act 2003 (WA), s 215
Rules of the Supreme Court 1971 (WA), O 66 r 1

Supreme Court Act 1935 (WA), s 37

Result:

Appellants pay the respondents' costs of the appeal to be taxed Category: B	[2007] WASCA 261 (S)
Representation:
Counsel:

First Appellant	:	Mr A R Macdonald
Second Appellant	:	Mr A R Macdonald
Third Appellant	:	Mr A R Macdonald
First Respondent	:	Mr R L Kelly
Second Respondent	:	Mr R L Kelly
Third Respondent	:	Mr R L Kelly
Fourth Respondent	:	Mr R L Kelly
Fifth Respondent	:	Mr R L Kelly

Solicitors:

First Appellant	:	Equal Opportunity Commission
Second Appellant	:	Equal Opportunity Commission
Third Appellant	:	Equal Opportunity Commission
First Respondent	:	Allens Arthur Robinson
Second Respondent	:	Allens Arthur Robinson
Third Respondent	:	Allens Arthur Robinson
Fourth Respondent	:	Allens Arthur Robinson
Fifth Respondent	:	Allens Arthur Robinson

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

Save the Ridge Inc v Commonwealth [2006] FCAFC 51; (2006) 230 ALR 411

JUDGMENT OF THE COURT

[2007] WASCA 261 (S)

JUDGMENT OF THE COURT: By its decision delivered on 28 November 2007, the Court unanimously dismissed an appeal brought by the Commissioner for Equal Opportunity, The Trades and Labour Council of Western Australia, and Western Australians for Racial Equality Inc, from the decision of the State Administrative Tribunal granting exemptions to ADI Ltd and various other related parties pursuant to s 135 of the Equal Opportunity Act 1984 (WA). As the parties have been unable to agree on the appropriate orders to be made in respect of the costs of the appeal, directions were made for the exchange of written…

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: [2007] WASCA 261 (S)
Decision Date: 29 JANUARY 2008

CaseChat Overview and Summary

The Commissioner for Equal Opportunity, The Trades and Labour Council of Western Australia, and Western Australians for Racial Equality Inc were appealing against a decision made by the State Administrative Tribunal that granted exemptions to ADI Ltd and several related parties under section 135 of the Equal Opportunity Act 1984 (WA). The primary focus of the appeal was on the costs associated with the proceedings. The Court had to determine whether it should adhere to the established principle that costs should follow the event, or if the public interest warranted a deviation from this principle.

The legal issues revolved around the Court's discretion in determining who should bear the costs of the proceedings and the extent to which these costs should be taxed. The appellants argued that the usual practice of costs following the event should be disregarded due to specific circumstances. The Court considered the submissions from both parties regarding the appropriate orders for costs and examined whether there was sufficient public interest to justify a departure from the standard practice.

The Court exercised its discretion under the Supreme Court Act 1935 (WA), section 37, and the Rules of the Supreme Court 1971 (WA), Order 66 r 1(1), which generally allows the successful party to recover their costs. After evaluating the arguments and the context of the case, the Court concluded that the appellants should bear the respondents' costs of the appeal, to be taxed. The reasoning was based on the inability of the parties to agree on the appropriate orders and the consideration of the public interest in the matter.

Accordingly, the Court ordered that the appellants pay the respondents' costs of the appeal to be taxed. This decision reflects the Court's careful consideration of the statutory framework and the specific circumstances of the case in determining the appropriate allocation of costs.

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: By its decision delivered on 28 November 2007, the Court unanimously dismissed an appeal brought by the Commissioner for Equal Opportunity, The Trades and Labour Council of Western Australia, and Western Australians for Racial Equality Inc, from the decision of the State Administrative Tribunal granting exemptions to ADI Ltd and various other related parties pursuant to s 135 of the Equal Opportunity Act 1984 (WA). As the parties have been unable to agree on the appropriate orders to be made in respect of the costs of the appeal, directions were made for the exchange of written submissions on that topic. Following consideration of those submissions, the Court has decided that the appropriate order to be made in respect of the costs of the appeal is that the appellants pay the respondents' costs of the appeal to be taxed. These are the reasons for that conclusion. The Court has a wide discretion to determine by whom, and to what extent, the costs of proceedings are to be paid (Supreme Court Act 1935 (WA), s 37). Order 66 r 1(1) of the Rules of the Supreme Court 1971 (WA) provides: [w]ithout limiting the general discretion conferred on the Court by the [Supreme Court Act], and subject to this Order, the Court will generally order that the successful party to any action or matter recover his costs. The appellants submit that the Court should not follow the usual practice whereby costs are ordered to follow the event because: For these reasons the Court orders that the appellants pay the respondents' costs of the appeal to be taxed.

Ratio Decidendi

Legal Principle Established

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