Gilroy v Lee in Her Capacity as Director, WorkCover Western Australia Authority

[2021] WASC 200

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   GILROY -v- LEE IN HER CAPACITY AS DIRECTOR, WORKCOVER WESTERN AUSTRALIA AUTHORITY [2021] WASC 200

CORAM:   CURTHOYS J

HEARD:   17 NOVEMBER 2020

DELIVERED          :   30 JUNE 2021

FILE NO/S:   CIV 1644 of 2020

BETWEEN:   PATRICIA GILROY

Applicant

AND

KARIN LEE IN HER CAPACITY AS DIRECTOR, WORKCOVER WESTERN AUSTRALIA AUTHORITY

Respondent

Catchwords:

Costs - No decision on merits

Legislation:

Rules of the Supreme Court 1971 (WA), O 56 r 7, O 66 r 1

Result:

No order as to costs

Category:    B

Representation:

Counsel:

Applicant	:	Mr M P Hawkins
Respondent	:	No appearance
Amicus Curiae	:	Ms J Harman

Solicitors:

Applicant	:	Chapmans Barristers & Solicitors
Respondent	:	State Solicitor's Office
Amicus Curiae	:	State Solicitor's Office appearing on behalf of the Attorney General of Western Australia

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

Mahenthirarasa v State Rail Authority of New South Wales [No 2] [2008] NSWCA 201; (2008) 72 NSWLR 273

Re Minister for Immigration Ethnic Affairs, Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622

CURTHOYS J:

1. In this matter the applicant seeks an order that the respondent pay the applicant's costs to be taxed if not agreed. The applicant relies on O 56 r 7 and O 66 r 1 of the Rules of the Supreme Court 1971 (WA).

1. Where there is no judgment or other final resolution on the merits, the principles that apply to an award of costs are set out in [66.10.12] of Civil Procedure Western Australia which states:[1]

   If at an interlocutory stage the parties to the litigation resolve a dispute about a hearing of the merits of the action, and if it appears that both parties have acted reasonably in the proceedings until the litigation was resolved or its further prosecution became futile, the usual consequence is that the Court will make no order as to the costs of the proceedings, for to do so would involve an examination of the merits of the action:  Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194 at 201.

   [1] LexisNexis, Civil Procedure Western Australia, vol 1 (185-11-19) [66.10.12].

2. The court cannot try a hypothetical action between the parties to determine who should have paid the costs had there been a hearing on the merits:  Re Minister for Immigration Ethnic Affairs, Ex parte Lai Qin.[2] 

   [2] Re Minister for Immigration Ethnic Affairs, Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622, 624.

3. The principle authority relied upon by the applicant in support of her application for costs is Mahenthirarasa v State Rail Authority of  New South Wales [No 2].[3]  An important point of difference between that case and this case is that a judgment on the merits was  delivered both at first instance and by the Court of Appeal.  As Basten JA observed:[4]

   The principle judgment in this matter was delivered on 21 May 2008:  Mahenthirarasa v State Rail Authority of New South Wales [2008] NSWCA 101. The applicant was granted leave to appeal with respect to a judgment of an Associate Justice in the Common Law Division. The appeal was allowed and the challenged decision of the Registrar of the Workers Compensation Commission was set aside.

   [3] Mahenthirarasa v State Rail Authority of New South Wales [No 2] [2008] NSWCA 201; (2008) 72 NSWLR 273.

   [4] Mahenthirarasa v State Rail Authority of New South Wales [No 2] [2].

4. In contrast to that decision there was no final decision on the merits in this matter.  Accordingly, Mahenthirarasa v State Rail Authority of New South Wales [No 2] is not an authority for the proposition advanced by the applicant.

5. Without the resolution of the merits of the case it is not possible or profitable to determine whether the respondent has conducted itself in the conduct of the litigation in the manner expected of the executive government.[5]

   [5] Mahenthirarasa v State Rail Authority of New South Wales [No 2] [15].

6. This matter was resolved by an amendment to the relevant legislation. 

7. I am not persuaded that the affidavit of Patricia Gilroy dated 11 June 2020 and the correspondence attached thereto constitutes any unreasonable conduct on the part of the respondent.

8. The respondent has not effectively surrendered to the applicant; rather, the point became moot by reason of the amendments to the legislation.  In the circumstances the application for costs by the applicant should be dismissed and there should be no order as to costs.

   I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

   SB

   Research Associate to the Honourable Justice Curthoys

   30 JUNE 2021