Interim Advance Corporation Pty Ltd T/As Aussie Cash v Commissioner for Consumer Protection
[2009] WASC 1 (S)
•12 JANUARY 2009
INTERIM ADVANCE CORPORATION PTY LTD T/AS AUSSIE CASH -v- COMMISSIONER FOR CONSUMER PROTECTION [2009] WASC 1 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2009] WASC 1 (S) | |
| Case No: | GDA:4/2008 | 5 & 10 NOVEMBER 2008, 12 & 30 JANUARY 2009 | |
| Coram: | SIMMONDS J | 11/01/09 | |
| 12/02/09 | |||
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Certain orders as to costs made | ||
| B | |||
| PDF Version |
| Parties: | INTERIM ADVANCE CORPORATION PTY LTD T/AS AUSSIE CASH (ACN 094 743 843) COMMISSIONER FOR CONSUMER PROTECTION |
Catchwords: | Successful appeal by leave from decision of the State Administrative Tribunal to the court exercising its jurisdiction other than as the Court of Appeal on a question of error of law Costs of appeal Most grounds of appeal not upheld Grounds not upheld dominant and separable from ground on which appeal successful Ground on which appeal successful related to matter arising after decision appealed from Principles to be applied to exercise of discretion as to costs Successful appeal by leave from decision of the State Administrative Tribunal to the court exercising its jurisdiction other than as the Court of Appeal on a question of error of law Costs of proceedings before the Tribunal Relevance of general approach in the Tribunal to exercise of discretion as to costs of such proceedings |
Legislation: | Credit (Administration) Act 1984 (WA), s 12 Criminal Code (WA), s 22 Rules of the Supreme Court 1971 (WA), O 66 r 1(1) Spent Convictions Act 1988 (WA) State Administrative Tribunal Act 2004 (WA), s 105 |
Case References: | Aksionairnoye Obschestvo Dlia Mechaniches-Koyi Obrabotky Diereva A M Luther v Sagor & Co [1921] 3 KB 532 Australian Federation of Consumer Organisations Inc v Tobacco Institute of Australia (1991) 100 ALR 568 Board of Examiners v XY [2006] VSCA 190 Buddhist Society of Western Australia (Inc) v Shire of Serpentine-Jarrahdale [1999] WASCA 55 Chew and Director General of the Department of Education and Training [2006] WASAT 248 Citygate Properties Pty Ltd and City of Bunbury [2005] WASAT 53 Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 Elliot v Lord Rokeby (1881) 7 App Cas 43 Ex parte Hauxwell; re Hemingway (1883) 23 Ch D 626 Fazio v Interim Advance Corporation Pty Ltd [2007] WASC 108 Hollier v Australian Maritime Safety Authority (No 2) [1998] FCA 975 Interim Advance Corporation Pty Ltd and Commissioner for Consumer Protection [2008] WASAT 81 Interim Advance Corporation Pty Ltd v Commissioner for Consumer Protection [2009] WASC 1 Interim Advance Corporation Pty Ltd v Fazio [2008] WASCA 140 Mickelberg v State of Western Australia [2007] WASC 140 (S) New South Wales Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177 New South Wales Bar Association v Murphy [2002] NSWCA 138; (2002) 55 NSWLR 23 O'Rourke v P & B Corporation Pty Ltd [2008] WASC 36 (S) Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 Oshlack v Richmond River Shire Council & Iron Gates Developments Pty Ltd (1994) 82 LGERA 236 Re Smith; ex parte Rundle (No 2) (1991) 6 WAR 299 Real Estate and Business Agents Supervisory Board v Espanol Holdings Pty Ltd (in liq) (No 2) [2008] WASCA 109 (S) Scott v Handley [1999] FCA 404 Shark Bay Tuna Farms Pty Ltd and Executive Director, Department of Fisheries (WA) [2005] WASAT 206 South-West Forests Defence Foundation (Inc) v The Lands & Forest Commission (No 2) (1995) 86 LGERA 382 Summerville and Department of Education & Training [2006] WASAT 368 (S) Waters v PC Henderson (Australia) Pty Ltd [1994] NSWCA 338 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
DECISION : 13 FEBRUARY 2009 FILE NO/S : GDA 4 of 2008 BETWEEN : INTERIM ADVANCE CORPORATION PTY LTD T/AS AUSSIE CASH (ACN 094 743 843)
- Appellant
AND
COMMISSIONER FOR CONSUMER PROTECTION
Respondent
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram : MR T CAREY
- MR A MACRI
MR J R COLLEY
Citation : INTERIM ADVANCE CORPORATION PTY LTD and COMMISSIONER FOR CONSUMER PROTECTION [2008] WASAT 81
File No : CC 1732 of 2007
(Page 2)
Catchwords:
Successful appeal by leave from decision of the State Administrative Tribunal to the court exercising its jurisdiction other than as the Court of Appeal on a question of error of law - Costs of appeal - Most grounds of appeal not upheld - Grounds not upheld dominant and separable from ground on which appeal successful - Ground on which appeal successful related to matter arising after decision appealed from - Principles to be applied to exercise of discretion as to costs
Successful appeal by leave from decision of the State Administrative Tribunal to the court exercising its jurisdiction other than as the Court of Appeal on a question of error of law - Costs of proceedings before the Tribunal - Relevance of general approach in the Tribunal to exercise of discretion as to costs of such proceedings
Legislation:
Credit (Administration) Act 1984 (WA), s 12
Criminal Code (WA), s 22
Rules of the Supreme Court 1971 (WA), O 66 r 1(1)
Spent Convictions Act 1988 (WA)
State Administrative Tribunal Act 2004 (WA), s 105
Result:
Certain orders as to costs made
Category: B
(Page 3)
Representation:
Counsel:
Appellant : Mr E M Corboy SC & Ms C H Thompson
Respondent : Mr C P Shanahan SC & Ms L B Black
Solicitors:
Appellant : Melvyn Levitan
Respondent : Consumer & Employment Protection Legal Services Unit
Case(s) referred to in judgment(s):
Aksionairnoye Obschestvo Dlia Mechaniches-Koyi Obrabotky Diereva A M Luther v Sagor & Co [1921] 3 KB 532
Australian Federation of Consumer Organisations Inc v Tobacco Institute of Australia (1991) 100 ALR 568
Board of Examiners v XY [2006] VSCA 190
Buddhist Society of Western Australia (Inc) v Shire of Serpentine-Jarrahdale [1999] WASCA 55
Chew and Director General of the Department of Education and Training [2006] WASAT 248
Citygate Properties Pty Ltd and City of Bunbury [2005] WASAT 53
Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261
Elliot v Lord Rokeby (1881) 7 App Cas 43
Ex parte Hauxwell; re Hemingway (1883) 23 Ch D 626
Fazio v Interim Advance Corporation Pty Ltd [2007] WASC 108
Hollier v Australian Maritime Safety Authority (No 2) [1998] FCA 975
Interim Advance Corporation Pty Ltd and Commissioner for Consumer Protection [2008] WASAT 81
Interim Advance Corporation Pty Ltd v Commissioner for Consumer Protection [2009] WASC 1
Interim Advance Corporation Pty Ltd v Fazio [2008] WASCA 140
Mickelberg v State of Western Australia [2007] WASC 140 (S)
New South Wales Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177
New South Wales Bar Association v Murphy [2002] NSWCA 138; (2002) 55 NSWLR 23
O'Rourke v P & B Corporation Pty Ltd [2008] WASC 36 (S)
(Page 4)
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Oshlack v Richmond River Shire Council & Iron Gates Developments Pty Ltd (1994) 82 LGERA 236
Re Smith; ex parte Rundle (No 2) (1991) 6 WAR 299
Real Estate and Business Agents Supervisory Board v Espanol Holdings Pty Ltd (in liq) (No 2) [2008] WASCA 109 (S)
Scott v Handley [1999] FCA 404
Shark Bay Tuna Farms Pty Ltd and Executive Director, Department of Fisheries (WA) [2005] WASAT 206
South-West Forests Defence Foundation (Inc) v The Lands & Forest Commission (No 2) (1995) 86 LGERA 382
Summerville and Department of Education & Training [2006] WASAT 368 (S)
Waters v PC Henderson (Australia) Pty Ltd [1994] NSWCA 338
(Page 5)
- SIMMONDS J:
Introduction
1 This is my decision as to the costs of the appeal by leave of this court from a decision of the State Administrative Tribunal (the SAT, or the Tribunal), as well as my decision as to the costs of the SAT proceedings. I upheld the appeal for the reasons given in Interim Advance Corporation Pty Ltd v Commissioner for Consumer Protection [2009] WASC 1 (Interim Advance WASC).
2 The decision of the SAT appealed from, Interim Advance Corporation Pty Ltd and Commissioner for Consumer Protection [2008] WASAT 81 (Interim Advance WASAT), reviewed the decision of the respondent to refuse the appellant a credit provider's licence under Credit (Administration) Act 1984 (WA) (CA Act) s 12. The decision in Interim Advance WASAT was also to refuse the application. This decision was on the basis the sole director of the appellant, a Mr Douglas, was not a 'fit and proper person to be the holder of a licence if [that person] were to apply for the licence personally': CA Act s 12(4)(h). That decision rested on three sets of findings about Mr Douglas made in other proceedings concerning him, none of them before the SAT: see Interim Advance WASAT [33].
3 On 12 January 2009 at the hearing before me, at which I delivered my judgment in Interim Advance WASC, I understood it was agreed by the parties that, as a consequence of my reasons, I should at least make orders in terms that the appeal be allowed, the decision in Interim Advance WASAT be set aside, and the matter be sent back to the SAT as originally constituted for reconsideration having regard to those reasons. However, the parties differed on the matter of the appropriate costs orders to be made. The appellant indicated that the appropriate costs orders were for the appellant to be awarded the costs of the appeal and of the proceedings before the SAT. The respondent indicated that I should make no order as to costs of either sort.
4 In those circumstances, I called for each party to make written submissions as to the orders I should make, unless agreement could be reached on those orders. Each party provided written submissions as to costs dated 14 January 2009 and 16 January 2009 (respectively, the appellant's written submissions, numbering two pages, with no attachments; and the respondent's written submissions, numbering 10 pages, with a list of authorities and a copy of one of those authorities). The appellant also provided two minutes of orders. One minute was dated
(Page 6)
- 15 January 2009 and covered the upholding of the appeal, the setting aside of the SAT decision and the sending of the matter back to the SAT for reconsideration (the appellant's result minute). The other minute was dated 14 January 2009 and was as to costs (the appellant's costs minute). The respondent filed a minute of orders dated 19 January 2009 seeking no order as to costs (the respondent's minute). The respondent's written submissions indicated the effect of the respondent's minute.
5 In view of the natures of the written submissions, particularly their respective lengths and the issues they raised, I had the parties come back before me to have an opportunity to present any oral submissions they wished by way of clarification, elaboration or reply. I also had the parties confirm particular matters arising out of their submissions and minutes of orders.
6 In these reasons I first set out the parties' competing positions as to costs, as shown by the appellant's costs minute and the respondent's written submissions. Then I consider the submissions as to costs in the parties' written submissions, first considering the costs of the appeal and then the costs of the proceedings before the SAT. The penultimate section of these reasons is the orders I would make, both for the result of the appeal, and for costs. In the final section of these reasons I consider the costs of these proceedings regarding the orders on this appeal.
Parties' competing positions as to costs orders
7 The appellant's costs minute is in the following terms:
The Respondent pay the Appellant's costs including any reserved costs and a certificate for the State Administrative Tribunal's transcript of the Appeal and the Application for Leave to Appeal and the proceedings before the State Administrative Tribunal to be agreed and if not agreed to be taxed.
8 The respondent's minute is in the following terms:
There be no order as to the costs of the appeal, including the application for leave to appeal, or of the proceedings before the State Administrative Tribunal and any unsatisfied costs orders be vacated.
9 The respondent's submissions [35] are as follows:
The Respondent submits that having regard to the circumstances of this appeal and the arguments set out above, the Court should exercise its discretion such that each party bear its own costs of the appeal, including the application for leave to appeal and any reserved costs, and of the proceedings before the SAT.
(Page 7)
10 I did not take the absence of any matter in the respondent's minute or the respondent's written submissions, of the sort in the appellant's result minute, to indicate that the respondent did not agree that orders to the effect in that minute were appropriate. At the hearing before me its counsel confirmed my understanding.
11 I took the reference in the appellant's costs minute to 'SAT's transcript of the Appeal' to refer to the transcript of the SAT proceedings that reviewed the decision of the respondent. I took the reference to 'and the Application for Leave to Appeal' to be a reference to the costs of the application for leave to appeal, including costs of any application for leave to amend the grounds of appeal. There was an application of the latter sort in this case: see below. At the hearing before me its counsel confirmed my understanding.
12 I should note that it appears not to be in contest that I have power to make an order as to the costs of proceedings before the SAT in a successful appeal from a decision of the SAT. I consider such power is by virtue of the power on an appeal to 'make any order the court considers appropriate' under State Administrative Tribunal Act 2004 (WA) (SAT Act) s 105(9), closing words.
13 I turn now to the costs of the appeal, including the costs of the transcript of the proceedings before the SAT, reserved costs and costs of the application for leave to appeal, including the application for leave to amend the grounds of appeal.
Costs of the appeal
14 The starting point in my view is Rules of the Supreme Court 1971 (WA) O 66 r 1(1), that 'the Court will generally order that the successful party to any action or matter recover his costs'. The appellant's written submissions rely on this position.
15 The respondent's written submissions rest on the undoubted proposition that the principle just quoted is not an unqualified one: see Kendall C and Curthoys J, Civil Procedure WA [66.1.1], referring to Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 among other authorities. The respondent referred me to the decision of Gaudron and Gummow JJ in Oshlack, where their Honours say:
There is no absolute rule … that, in the absence of disentitling conduct, a successful party is to be compensated by the unsuccessful party. Nor is there any rule that there is no jurisdiction to order a successful party to bear the costs of the unsuccessful party [40]. (footnote omitted)
(Page 8)
- See also [134] (Kirby J).
16 The respondent's written submissions refer me to four bases, each of which, or at least any combination of which, I understood the respondent to be submitting should cause me to make the orders as to costs it proposed. I deal with those four bases in the order in which they appear in the respondent's written submissions.
17 First, the respondent's written submissions relied on what those submissions styled the appellant's choice to proceed before the SAT with full knowledge of the pending appeal from the decision of Hasluck J in Fazio v Interim Advance Corporation Pty Ltd [2007] WASC 108 (Fazio WASC), itself on appeal from the decision of a magistrate to acquit the appellant of certain charges. In Interim Advance WASAT, the SAT relied on the findings of Hasluck J that certain evidence from Mr Douglas before the magistrate was not sufficient to raise a defence of honest claim of right under the Criminal Code (WA) s 22. The SAT also relied on certain findings relevant to Mr Douglas in two other proceedings in reaching its decision in Interim Advance WASAT, as I have already indicated. Leave to appeal from the decision in Fazio WASC had been granted and the appeal was pending at the time of the proceedings before the SAT and of the delivery, on 15 April 2008, of its decision in Interim Advance WASAT.
18 On 12 June 2008, McKechnie J of this court granted leave to appeal from Interim Advance WASAT.
19 On 16 July 2008 the decision in the appeal from Fazio WASC was delivered: Interim Advance Corporation Pty Ltd v Fazio [2008] WASCA 140 (Fazio WASCA). In that decision, the Court of Appeal identified certain errors of law in the way in which Hasluck J had approached the evidence as to honest claim of right in Fazio WASC: Fazio WASCA, [93] - [94], quoted in Interim Advance WASC [134]. Those errors of law, in my view in Interim Advance WASC (see [163] - [168]), made it an error of law for the SAT to rely on Hasluck J's findings as it had.
20 I am of the view that the first basis on which the respondent relies has no bearing on my decision as to costs, of the appeal or otherwise. True it is, the appellant before the SAT accepted that the Tribunal was entitled to have regard to the findings of Hasluck J (transcript of the proceedings before the SAT, 13 February 2008, ts 27). However, the appellant before the SAT sought to convince the Tribunal that the findings
(Page 9)
- of Hasluck J should be considered in the context of the circumstances of Mr Douglas's conduct that were in evidence before Hasluck J, while at the same time the SAT should note that the decision of his Honour was the subject of a pending appeal for which leave had been granted. My view in Interim Advance WASC was also that the SAT could reasonably rely on the findings of Hasluck J, at the time of that reliance: [160]. The appellant's argument before the SAT was, in my view, in significant part at least an argument as to the weight to be assigned to the findings of Hasluck J. Indeed the matter of the weighting of those findings related to one of the grounds of appeal before me (ground 6): see Interim Advance WASC [188] - [193]. That ground failed.
21 In my view it adds nothing significant to that failure to refer to the appellant's manner of proceeding before the SAT as a choice. I return below to the failure of ground 6 and other grounds in the appeal. In any event, it seems to me the appellant was entitled to have its application for a licence dealt with expeditiously, without awaiting the outcome of the then pending appeal: see Interim Advance WASC [200] - [201].
22 Second, the respondent's written submissions relied on the fact the appellant was only successful on the issues subsumed by one ground (ground 5) which was added only after the decision in Fazio WASCA.
23 There is strong support for the contention that it is relevant to the exercise of a discretion as to the costs of an appeal that success in that appeal is the result of 'fresh evidence': Board of Examiners v XY [2006] VSCA 190 [23] - [24] (Chernov JA), referring to Ex parte Hauxwell; re Hemingway (1883) 23 Ch D 626, 643 - 644 (Baggallay LJ) and Aksionairnoye Obschestvo Dlia Mechaniches-Koyi Obrabotky Diereva A M Luther v Sagor & Co [1921] 3 KB 532, 546 - 547 (Bankes LJ).
24 I consider the present is a comparable case, even although the appeal in Fazio WASCA was pending at the time of Interim Advance WASAT, as was clearly understood by all at that time. In my view there was a significant change of circumstances represented by the outcome in Fazio WASCA in the respect relevant to Interim Advance WASC. That change in my view was hardly a foregone conclusion at the time of Interim Advance WASAT.
25 On the basis the change of circumstances is relevant, there are on the authorities at least two possible sets of orders as to costs to which that change might incline the court. One is no order as to costs, of the appeal or below: see Hauxwell (644) (the order applies to the 'whole of the
(Page 10)
- costs'). The other is to allow for the costs of the appeal, or at least some part of them, for the successful appellant, but costs below for the respondent, on the basis the decision there was not shown to be incorrect at the time it was made in the respect relevant to the decision in Interim Advance WASC: see Luther. I will say a little more below about that aspect of Luther in respect of the costs of the proceedings before the SAT.
26 The respondent also relied, in respect of this second basis, on the fact ground 5 was only added, and later amended, after leave to appeal was granted: see Interim Advance WASC [35], [37]. However, I note that that leave was granted before the decision in Fazio WASCA was published, after which leave to add ground 5 was sought, and later leave was sought to amend that ground. It is not suggested that the delay in seeking leave to add and later to amend ground 5 after Fazio WASCA was published caused any prejudice to the respondent other than to extend the length of the hearing before me beyond that which might otherwise have been anticipated at the time leave to appeal was granted. However, I do not draw anything from that. No objection was taken at the hearing before me that there was insufficient notice of ground 5, or of ground 6, for which leave to amend the grounds of appeal was also sought: see Interim Advance WASC [42]. Given the ultimate disposition of the appeal on one of the grounds which might be seen to have extended the hearing, I do not consider this further point should bear on the exercise of my discretion as to costs.
27 Third, the respondent relied on the fact the appellant succeeded on only one ground of appeal (ground 5). This was the ground that related to the SAT's error in relying on the findings of Hasluck J in Fazio WASC, by reference to Fazio WASCA. However, I should add that, as the respondent acknowledged, I associated this ground with a portion of another ground (ground 2e), on which the appellant failed: see Interim Advance WASC [135], [162], [195]. This association was because they shared the same character in the respect in which the appeal succeeded, and in substance they represented a single ground. In that respect ground 2e went beyond the matters of procedural fairness to which ground 2 otherwise related.
28 There is support for the contention it is relevant to the exercise of discretion as to costs of an appeal that an appellant was successful in relation to one ground of appeal, but unsuccessful in relation to all other substantial matters: see Elliot v Lord Rokeby (1881) 7 App Cas 43, 47 (Lord Blackburn), where no order as to costs was made in a matter where
(Page 11)
- the appellant succeeded on one point of their appeal but failed as to all other points, which were of a 'great deal more importance' to the appellant but which were not contended for in oral argument.
29 This relevance is further supported by the authorities on success in an action or other original proceeding on some issues but not on others. The approach that the modern authorities indicate ought to be followed in such a case is reviewed in Mickelberg v State of Western Australia [2007] WASC 140 (S) [29] - [46] (Newnes J). I note in particular [43] - [46], in which reference is made to Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261, as follows:
It seems to me, therefore, that the effect of the authorities is that if a successful party fails on some issue, the circumstances may make it reasonable that that party be deprived of their costs of that issue. It is not necessary that the issue concerned was raised unreasonably by the party. But parties should not be dissuaded by the risk of costs from canvassing all issues which might be material to the decision in the case, and unless a particular issue or group of issues is clearly dominant or separable from the balance of the proceedings, or there has been some unreasonable or inappropriate conduct by the successful party in relation to an issue, it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between the issues on which it was successful and those on which it failed.
Where it is appropriate to consider the outcome of particular issues in the case, it will be relevant to consider whether there has been any unreasonable or inappropriate conduct on behalf of the successful litigant in relation to that issue, the relative merits or strengths of that party on the issue, whether the length of the hearing was greatly increased by the issue, and whether the issue otherwise was of sufficient significance in proportion to the whole case to warrant an order depriving that party of the costs of that issue.
Plainly, however, there can be no hard and fast rules and the discretion must be exercised having regard to all of the relevant circumstances of the case.
Where the Court does take the course of disallowing costs by reference to a particular issue or issues, the exercise of discretion that is involved in doing so will often be more a matter of art than science. As Gummow, French and Hill JJ pointed out in Dodds Family Investments … (supra), where there is a mixed outcome in proceedings, the question of apportionment is very much a matter of discretion for the trial Judge. Mathematical precision is illusory and the exercise of the discretion will often depend upon matters of impression and evaluation [43] - [46].
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30 I consider the approach described in Mickelberg is applicable, mutatis mutandis, to the costs of an appeal. I would apply that approach while recognising that the lack of such application would not in my view be an error in the exercise of my discretion: see Waters v PC Henderson (Australia) Pty Ltd [1994] NSWCA 338. Further, I do so, mindful of the need for robustness in approaching submissions that seek an apportionment of costs based on a party's success in relation to specific issues: see Mickelberg [35], [43], [44], and O'Rourke v P & B Corporation Pty Ltd [2008] WASC 36 (S) [5], [6] and [11] - [13] (Martin CJ). My reasons follow.
31 I consider the set of issues subsumed by ground 1, on which the appellant failed, to have been the predominant issues at the hearing, while the issues subsumed by grounds 2 (leaving aside ground 2e), 3, 4 and 6, on all of which the appellant also failed, to have accounted for most of the rest of the time at the hearing. I further consider that of the last four grounds, the most significant in terms of hearing time and of treatment in the decision in Interim Advance WASC was ground 2 (leaving aside ground 2e), which accounted for more hearing time than ground 5 (and ground 2e) and received substantially longer treatment than ground 5 in the decision in Interim Advance WASC. While ground 2 and ground 6 were related to ground 5, as they were all concerned with the SAT's reliance on the findings of Hasluck J in Fazio WASC, they were separable, in that each was concerned with a different error of law in respect of that reliance.
32 I thus consider that all the grounds other than ground 5 (considered with ground 2e) were both 'clearly dominant' and 'separable' from that ground.
33 At the same time, I do not consider there was unreasonable or inappropriate conduct by the appellant in relation to the issues on which it failed. All of the issues were in my view reasonably arguable. Further, the issues which in my view extended the length of the hearing substantially beyond that for which it was listed, being the issues subsumed by grounds 1 and 2, proved to be of some difficulty as the judgment indicates.
34 I have mentioned that the notice to add ground 5 to the original grounds also included a further ground, ground 6: Interim Advance WASC [33]. However, in view of the history of the ultimate addition of that ground (briefly referred to at [42]), the relatively insubstantial contribution of ground 6 to the proceedings before me and my conclusion
(Page 13)
- that ground 6 was reasonably arguable (see [43]), I do not consider the delayed addition of ground 6 to the grounds of appeal is relevant to the exercise of my discretion.
35 I further consider that the relative strengths or merits of the parties on the issues on which the appellant failed were comparable if not finely balanced, particularly in respect of grounds 1 and 2, but also in respect of the remaining grounds on which the appellant failed, if to a lesser extent. This is indicated by the treatment of the issues subsumed by grounds 1, 2 (except ground 2e), 3, 4 and 6 in Interim Advance WASC.
36 Finally, the fourth basis on which the respondent relied in its written submissions was the public interest or importance of the subject matter of the litigation. Reference was made in this regard to Oshlack, and to Oshlack v Richmond River Shire Council & Iron Gates Developments Pty Ltd (1994) 82 LGERA 236, the decision as to costs the allowance of the appeal from which was set aside by the High Court in Oshlack. Reference was also made to Australian Federation of Consumer Organisations Inc v Tobacco Institute of Australia (1991) 100 ALR 568, 571 - 572 (Morling J) and Re Smith; ex parte Rundle (No 2) (1991) 6 WAR 299, 303 (Malcolm CJ).
37 In oral argument counsel for the appellant put to me that I should bear in mind that a public agency, like the respondent, acting as it was accepted the respondent had acted, in accordance with the standards of a model litigant (see Scott v Handley [1999] FCA 404 [43] - [45] (Spender, Finn and Weinberg JJ)), should not expect to be differentially treated in relation to O 66 r 1(1). While I accept that it should not have that expectation, equally I consider it should receive the consideration that might properly be accorded to it in accordance with the principles on which the respondent's written submissions rely.
38 I was referred, for the public interest or importance the respondent's written submissions contended for, to the issues of the construction and application of Spent Convictions Act 1988 (WA) subsumed by ground 1 of the appeal. I was also referred to the public interest in the participation by the respondent, undeterred by the possibility of significant adverse costs consequences, in an appeal ultimately concerned with the protection of the public. That appeal was so concerned because it went to the correct approach to the question whether the appellant's sole director, Mr Douglas, and thus the appellant, was a fit and proper person to carry on a particular trade or profession regulated by legislation which the respondent administered.
(Page 14)
39 However, in my view these aspects of the character of the appeal proceedings before me should play no significant role in the exercise of my discretion, for the following reasons.
40 I note the following, from Real Estate and Business Agents Supervisory Board v Espanol Holdings Pty Ltd (in liq) (No 2) [2008] WASCA 109 (S) [2], [3] (Steytler P, McLure and Pullin JJA), referring to Oshlack, Buddhist Society of Western Australia (Inc) v Shire of Serpentine-Jarrahdale [1999] WASCA 55 and Hollier v Australian Maritime Safety Authority (No 2) [1998] FCA 975:
The respondents were unsuccessful in the appeal and on their notice of contention. However, they contend the court should not follow the ordinary rule that a successful litigant should be awarded its costs for two reasons. First, they contend that the appeal was public interest litigation sufficient to warrant the appellant being deprived of its costs, relying on Oshlack … The public interest elements were identified as the interpretation of legislation protecting the public interest, being the creation and regulation of the Fidelity Fund, and the fact that the appellant is a publicly funded body required to administer the Fund.
Oshlack was a case where the unsuccessful party legitimately claimed to represent the public interest rather than merely a private interest. Mr Oshlack proceeded under s 123(1) of the Environmental Planning and Assessment Act 1979 (WA) which provided that any person might bring proceedings for an order to remedy or restrain breaches of that Act. This conferral of standing on a member of the public was an important factor in the decision of the majority in Oshlack. See Buddhist Society … In contrast, Pt VIII of the Real Estate and Business Agents Act 1978 (WA) gives to persons who have suffered loss by reason of any defalcation of a licensee a statutory private right to compensation from the Fund. The litigation related to a claim to a private right of the respondents. The fact that the resolution of the issue involved the interpretation of Pt VIII of the Act is a common feature of litigation which does not justify departure from the usual rule as to costs. Hollier …
41 I further note that Buddhist Society [8], appears to endorse the view, expressed in South-West Forests Defence Foundation (Inc) v The Lands & Forest Commission (No 2) (1995) 86 LGERA 382, that it would be a 'very rare' case in which the public interest factor would displace the general position.
42 True it is that the respondent was not defending a 'private right', and the question whether a person is a fit and proper person to hold a licence like that sought in this case is concerned with the protection of the public interest: New South Wales Bar Association v Murphy [2002] NSWCA 138; (2002) 55 NSWLR 23 [113] (Giles JA); and New South Wales Bar
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- Association v Evatt [1968] HCA 20; (1968) 117 CLR 177, 183 (Barwick CJ, Kitto, Taylor, Menzies and Owen JJ).
43 However, the authorities cited by the respondent, AFCO and Re Smith, which might be seen to have similar features to this case in the respects just described, were concerned with the question whether a successful party should be awarded its costs on an indemnity basis, not the present question. Neither Murphy nor Evatt was concerned with costs matters. I was not directed to authority that the character of the unsuccessful respondent (as the statutory licensing authority), combined with issues of interpretation and application like those subsumed by ground 1 in this appeal, or issues as to the scheme it administers for the protection of the public, are significant in relation to the general position of costs in O 66 r 1(1). Nor was I able to find any such authority.
44 Further, it seems to me that the interest of the respondent in the clarification of these issues for the purposes of its confident administration of the scheme in future cases might be expected to offset to some significant degree any inhibitions on its participation in the litigation flowing from O 66 r 1(1).
45 In view of my conclusions as to the second and third bases advanced in the respondent's written submissions for departing from the general principle in O 66 r 1(1); weighing the success of the appellant on only one of the bases for which it contended, arising as that basis did after the decision in Interim Advance WASAT; and comparing that success with its failure on the other bases it contended for as I did above, I have concluded that in my discretion I should award the costs of that one basis to the appellant: see Luther.
46 However, on that same review, considering the relative strengths and merits of the parties on the issues on which the appellant failed, the respondent should not be awarded its costs of the remaining issues. I particularly note that in my view I do not have reason to deprive the appellant of the costs of the issue on which it succeeded, or even to award the costs of the remaining grounds to the respondent, which I might have had if the remaining grounds put forward by the appellant had proven to be barely arguable. Compare Elliot. In my view as I have indicated, those remaining grounds all proved to be reasonably arguable, even if some were disposed of against the appellant with greater difficulty than others.
(Page 16)
47 For the reasons I have set out earlier, I do not consider the fact that the ground on which the appellant succeeded arose subsequent to the decision in Interim Advance WASAT is a sufficient reason to deny the appellant its costs of that ground. However, I do consider that fact is significant for my discretion in respect of the costs of the proceedings before the SAT, to which I now turn.
Costs of the proceedings before the SAT
48 The respondent's written submissions took as their starting point that SAT Act s 87(1) provides as follows:
87. Costs of parties and others
(1) Unless otherwise specified in this Act, the enabling Act, or an order of the Tribunal under this section, parties bear their own costs in a proceeding of the Tribunal.
- However, I should also note s 87(4), as follows:
(4) Without limiting anything else that may be considered in making an order for the payment by a party of the costs of another party where the matter that is the subject of the proceeding comes within the Tribunal's review jurisdiction, the Tribunal is to have regard to -
(a) whether the party (in bringing or conducting the proceeding before the decision-maker in which the decision under review was made) genuinely attempted to enable and assist the decision-maker to make a decision on its merits;
(b) whether the party (being the decision-maker) genuinely attempted to make a decision on its merits.
50 At the same time, I note from the respondent's written submissions the general position of the SAT that it will not make an award for costs, absent something in the nature of misconduct in the bringing or the conduct of proceedings before the Tribunal: see Chew and Director General of the Department of Education and Training [2006] WASAT 248 [85]; see also Citygate Properties Pty Ltd and City of Bunbury [2005] WASAT 53 [29] - [31]; Shark Bay Tuna Farms Pty Ltd and Executive Director, Department of Fisheries (WA) [2005] WASAT 206
(Page 17)
- [35]; and Summerville and Department of Education & Training [2006] WASAT 368 (S) [29] - [44].
51 However, no authorities were cited to me as to how this court has approached the exercise of its discretion under SAT Act s 105(9) to order costs of proceedings before the SAT that produced the decision set aside in an appeal. Nor have I found any such authorities.
52 My preliminary view is that there is much to be said for the contention that where such setting aside is the result of the appeal from the SAT and the matter is sent back to the SAT for reconsideration, the successful party has been put to the expense of having to undergo the proceedings again. The successful party should then as a general principle get its costs of the original proceedings. However, I do not consider I have to reach a conclusion on that point.
53 That is because the sole matter on which the appellant succeeded arose subsequent to the decision in Interim Advance WASAT, that matter being the decision in Fazio WASCA in relation to the findings of Hasluck J. In this case, absent Fazio WASCA, the decision in Interim Advance WASAT would not have been disturbed on appeal. In those circumstances, in the exercise of my discretion as to the costs of the proceedings before the SAT there should be no order as to those costs.
54 I have noted that in Luther the order as to costs of the proceedings below was in favour of the respondent. However, I consider that I should take account of the approach to costs in the SAT that I have described. I am not able to see why, in the circumstances I have described, an approach should be adopted to the costs of the respondent in the proceedings before the SAT that is more favourable to it than if the appeal had failed. In Luther, the proceedings below were in a court where, so far as is evident to me, the approach to costs was that in O 66 r 1(1).
Conclusion on orders
55 For the foregoing reasons, there should at least be orders in the appeal to the following effect (the first three of which were made at the hearing on 30 January 2009):
(1) Appeal allowed.
(2) The decision of the State Administrative Tribunal, dated 15 April 2008, Interim Advance Corporation Pty Ltd and Commissioner for Consumer Protection [2008] WASAT 81, be set aside.
(Page 18)
- (3) The matter be sent back to the State Administrative Tribunal as originally constituted for reconsideration having regard to the reasons in Interim Advance Corporation Pty Ltd v Commissioner for Consumer Protection [2009] WASC 1.
(4) There be no order as to the costs of the appeal including the application for leave to appeal and any reserved costs, except that the appellant have its costs, to be taxed if not agreed, of the issues on which it succeeded on the appeal, including any costs of such issues in the application for leave to appeal and any reserved costs of such issues as well as a certificate for the costs relating to such issues of the SAT's transcript.
(5) There be no order as to the costs of the proceedings in the State Administrative Tribunal that resulted in Interim Advance Corporation Pty Ltd and Commissioner for Consumer Protection [2008] WASAT 81.
56 This leaves one matter not addressed directly in the appellant's written submissions or the respondent's written submissions, namely, the costs of the present proceedings as to the orders on the appeal (by way of those submissions, oral argument and attendance on the delivery of the present decision as to orders). I turn to those costs.
The costs of the proceedings as to the orders on the appeal
57 I asked for submissions on the matter at the hearing before me, were I to make orders of the kind I have determined to make. Both sides indicated they would be content to have those costs determined as for the costs of the appeal.
58 In my view neither party was wholly successful in relation to its contentions for the appropriate costs orders to be made on the appeal and the final orders as to costs did not entirely follow either of the sets of orders contended for. In effect success was divided, in my view, approximately evenly. In those circumstances, it seems to me O 66 r 1(1) has no application. In my view the appropriate order as to the present costs is the same as for the costs of the appeal, but without the exception there provided for.
59 Accordingly, there should be no order as to the costs of the proceedings as to the orders on the appeal.
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