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)

1. 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.

General principles

1. 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.

3              When the Court orders a party to pay the costs of another, those costs

will normally be determined by reference to the relevant scale items under the applicable legal costs determination. However, the Court has power to order that the amount of costs be taxed by the taxing officer without regard to the maximum amount specified in an item or items applicable under a legal costs determination where that maximum amount would be inadequate because of the unusual difficulty, importance or complexity of the matter (Legal Practice Act 2003 (WA), s 215).

The appellants' submissions

1. The appellants submit that the Court should not follow the usual practice whereby costs are ordered to follow the event because:

(a)	the Appellants' involvement in the exemption application, and the appeal, was of a public, not private nature;
(b)	the Commissioner for Equal Opportunity, in particular, had a special statutory role in the application;

JUDGMENT OF THE COURT [2007] WASCA 261 (S)

(c)	the respondents were not claiming or defending a right, but seeking a special benefit under the Equal Opportunity Act;
(d)	the appeal dealt with a provision of the [Equal Opportunity Act] that had not been the subject of a determination by a superior court, and the proper application of which was in the wider public interest.

5              Contentions (a), (b) and (d) above are all concerned with the nature

of the issues raised by the appeal and the particular role taken by the appellants in respect of those issues. They are conveniently dealt with together.

6              Dealing firstly with the identity and role played by the appellants,

there is no evidence before the Court as to any arrangement between them in respect of the manner in which they will share the burden of any adverse costs order. We will therefore proceed upon the assumption that all would bear at least some responsibility for such an order.

7              The first appellant, the Commissioner for Equal Opportunity, is the

holder of a statutory office created under the Equal Opportunity Act. She has important responsibilities conferred upon her by that Act. In the discharge of those responsibilities, including the responsibilities which she assumed in relation to the prosecution of this appeal, she should be treated as any other statutory office holder whose costs and expenses are borne by the State.

8              The second appellant is the peak body representing trade unions in

Western Australia. Although there is no evidence on the topic, it is reasonable to infer that it pursued the appeal in order to further the interests of the unions which make up the Council, and through them, their members.

9              There is limited evidence before the Court in respect of the third

appellant, Western Australians for Racial Equality Inc. It seems that it is a voluntary association formed for the advancement of equal treatment of persons of differing racial backgrounds.

10            In summary therefore, the appeal was brought by a statutory office

holder, a peak trades union body endeavouring to further the interests of the members of the unions represented, and a voluntary association formed to promote racial equality.

11            The appellants submit that the appeal is appropriately categorised as

'public interest' litigation, but accept that there is no special costs regime

JUDGMENT OF THE COURT [2007] WASCA 261 (S)

applicable to litigation characterised in that way - see Save the Ridge Inc v Commonwealth [2006] FCAFC 51; (2006) 230 ALR 411, at 413 - 414. Although the primary issue ventilated in the appeal, being the construction of the Equal Opportunity Act, has a facet which could be characterised as giving rise to an issue which impacts upon the public interest, the proper interpretation of legislation of general application could almost always be characterised in the same way. In our opinion, the issue of statutory interpretation which was raised by the appellants was not special or out of the ordinary, nor unusually complex, difficult or important, nor did it have any characteristic which differentiates it from similar issues of statutory interpretation which are commonly raised in appeals.

12            Nor does the first appellant's role as a statutory office holder with an

interest in the interpretation and application of the statute in question differentiate this case in any way from a large number of other appeals heard by the Court. And the fact that the point of interpretation had not previously been determined by a superior court is another commonplace feature of appeals concerning the interpretation of statutes, and which does not provide any justification for departing from the normal rules in respect of costs.

13            Accordingly, for these reasons, the submissions made by the

appellants in respect of the nature of the issues raised by the appeal and their particular roles in relation to those issues do not persuade us to depart from the normal practice of the Court in respect of costs.

14            Turning then to the appellants' submission that the normal practice in

respect of costs should be departed from because the respondents were seeking a special benefit under the Equal Opportunity Act, this submission overlooks the fact that the respondents sought and obtained a benefit from the State Administrative Tribunal, not this Court. It was the appellants who invoked the jurisdiction of this Court, and who contended that the SAT had erred in law. The Court rejected that contention, and that is the event which costs should follow.

15            Put another way, the issue raised in the appeal to this Court by the

appellants was not the question of whether or not the respondents should be entitled to an exemption under s 135 of the Equal Opportunity Act. Rather, the issue was whether the State Administrative Tribunal had erred in law in deciding that the respondents should be granted such an exemption. As the Court decided that the Tribunal had not erred in law, there is nothing in the nature of the relief sought by the respondents from

JUDGMENT OF THE COURT [2007] WASCA 261 (S)

the Tribunal which would justify a departure from the ordinary rule in
respect of the costs of the proceedings in the Court.

16            For these various reasons, we conclude that in this appeal there is no

reason to depart from the ordinary practice of the Court whereby costs are ordered to follow the event, which in this case leads to the conclusion that the appellants should be ordered to pay the respondents' costs of the appeal.

The respondents' submissions

17            The respondents submit that their costs should be taxed without

regard to the particular limits prescribed by the relevant items in the applicable costs determinations. They do so by reference to the volume of the appeal books filed in the appeal, the fact that there were originally thirteen grounds of appeal, later amended to five grounds of appeal, supported by amended submissions and legal authorities. Various adjectives like 'substantial', 'extensive' and 'detailed' are used in the respondents' submissions to characterise this material.

18            However, in our view, there is nothing out of the ordinary in relation

to either the volume of material comprised within the appeal books, the ambit of the grounds of appeal, or the submissions lodged in support of those grounds. While the practice of lodging thirteen grounds of appeal, then amending those grounds to five, and then abandoning three of those five grounds during the hearing of the appeal, is obviously not a practice which is to be encouraged, the respondents have the protection of costs orders already made in relation to costs thrown away by reason of the amendment of the grounds of appeal, and the costs of preparing to meet the grounds which were abandoned will be covered by the orders which we propose to make.

19 Pursuant to s 215 of the Legal Practice Act 2003 (WA), the Court is empowered to make various orders, including an order removing the limits imposed by a costs determination if the Court is 'of the opinion that the amount of costs allowable, if the limits were applied, would be inadequate because of the unusual difficulty, complexity or importance of the matter'. In our opinion, there was nothing unusually difficult or complex about this appeal. And while the parties no doubt regarded the issues raised by the appeal as important, that is not in itself unusual, nor so far as we can see, did the parties' assessment of the importance of the case have such an impact on the work done as to justify removing the limits imposed by the relevant costs determination.

JUDGMENT OF THE COURT	[2007] WASCA 261 (S)
Conclusion

1. For these reasons the Court orders that the appellants pay the respondents' costs of the appeal to be taxed.