Jarman v SA Metropolitan Fire Service; Booth v SA Metropolitan Fire Service (No 2) - [2006] SADC 47

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
In the Matter of SOUTH AUSTRALIAN METROPOLITAN FIRE SERVICE ACT 1936
JARMAN & ORS v SA METROPOLITAN FIRE SERVICE; BOOTH & ORS v SA METROPOLITAN FIRE SERVICE (No 2)
Ruling of His Honour Judge Clayton, Assessor Schmerl and Assessor Vander-Jeugd
28 April 2006
ADMINISTRATIVE LAW
COSTS
HELD: The requirement that costs can only be awarded in administrative appeals undersection 42G of the District Court Act 1991 where it is in the interests of justice is overridden by the power in section 40B(2) of the South Australian Metropolitan Fire Service Act 1936. Order for costs in favour of nominees for promotion who are subject to an appeal under Part 5 of the South Australian Metropolitan Fire Service Act even though those persons were not parties to the appeals against their nomination.
District Court Act 1991 Part 6, Division 1, subdivison 2; South Australian Metropolitan Fire Service Act 1936 Part 5, Division 1, referred to.
Moore v Registrar of the Medical Board (No 2) (2001) 219 LSJS 449, considered.

JARMAN & ORS v SA METROPOLITAN FIRE SERVICE; BOOTH & ORS v SA METROPOLITAN FIRE SERVICE (No 2)
[2006] SADC 47

This ruling concerns applications for costs made as a consequence of the reasons for judgment which were published on 9 February 2006. The reasons must be interpreted in the light of remarks made by the Court on 29 September 2005.
The circumstances of the applicants for costs differ and they must be considered in separate groups. It is convenient to consider the different groups by reference to the counsel who presented the argument on their behalf.
The legislation
In the reasons published on 9 February 2006, we held that the provisions of Part 6, Division 2 subdivision 2 of the District Court Act 1991 were complimentary to the provisions of Part 5, Division 1 of the South Australian Metropolitan Fire Service Act 1936. Section 40B(2) of the South Australian Metropolitan Fire Service Act 1936 provides that the court may in proceedings under Part 5 Division 1 award costs against the Corporation but may not award costs against an appellant. Subdivision 2 of Division 2 of Part 6 of the District Court Act 1991 “applies in relation to the appellate jurisdiction conferred on the Court by another Act (the special Act) subject to the provisions of the special Act”. The South Australian Metropolitan Fire Service Act 1936 is such a special Act.
Section 42G of the District Court Act 1991 provides that when hearing administrative appeals no order for costs is to be made unless the court considers such an order to be necessary in the interests of justice. However, that provision is subject to the provisions of the special Act, that is the South Australian Metropolitan Fire Service Act 1936.
We hold that the restriction in section 42G of the District Court Act 1991, that is that a costs order can only be made where it is in the interests of justice, is overridden by the special provisions in section 40B(2) of the South Australian Metropolitan Fire Service Act 1936. That is, it is not necessary that the costs order be “necessary in the interests of justice” and there is no necessity for the applicant to costs to demonstrate some unusual or out of ordinary feature about the case such as those considered by Judge Smith in Moore v Registrar of the Medical Board (No 2)[1]. Accordingly, we reject the submission by the Corporation that the court can only make costs orders against the Corporation where it is necessary in the interests of justice.
[1] (2001) 219 LSJS 449
In considering the applications for costs the success of the parties in the proceedings is not the only consideration. There are wider industrial considerations. The subject matter of the appeals was the alleged inadequacy of the process by which the Corporation nominated firemen for promotion. The applicants for promotion did not cause the alleged inadequacies.
There are three separate applications for costs against the Corporation. The Corporation opposed each application.
Application by Mr Durkin - Group 1 appellants
Mr Durkin’s clients were persons who had passed the theory examination but were not initially nominated for promotion to the position of station officer. They have become known as Group 1. The initial hearing on 22 and 23 August 2005 focussed on their particular grievances.
One of the arguments put on their behalf was that the nomination of persons who had not passed the theory examination was unfair and in breach of representations that had been made so that the promotion process should be invalidated.
We mention in passing that one unsatisfactory aspect of these appeals is that all appellants have lodged a notice of appeal naming all of the persons numbered 1 to 107 in the order of merit, including themselves, as respondents. The Group 1 appellants are therefore respondents to the appeals of the Group 2 appellants and the Group 2 appellants themselves are respondents to their own appeals.
The clients of Mr Durkin are not in identical situations. It is convenient to refer to his clients by their position on the order of merit. In doing so we mean no disrespect to the individual persons. Numbers 39 and 40 were nominated for promotion on 15 March 2004. There was no appeal against their nominations. Numbers 41 to 48 on the order of merit were nominated for promotion on 11 August 2004 and there was no appeal from their nominations. However, numbers 39 to 48 inclusive maintained their appeals and sought to have the nominations of numbers 1 to 38 revoked. It was suggested that if the nominations of numbers 1 to 38 were revoked numbers 39 to 48 would benefit in seniority. Just how that might have come about was never made clear. However, for present purposes, what is important is that numbers 39 to 48 were initially appellants who pursued the “process” argument. So did numbers 49 to 60 who were nominated for promotion on 31 December 2004. The interests of numbers 39 to 48 and 49 to 60 on the order of merit are not identical. The position of numbers 39 to 48 inclusive was different from numbers 49 to 60 in that nominations numbered 49 to 60 were subject to appeals themselves, but numbers 39 to 48 were not. Unless there was some benefit associated with seniority, there was no reason for numbers 39 to 48 to appeal and pursue the process argument
At the first hearing on 22 and 23 August 2005, Mr Durkin argued that nominations 1 to 38 should all be revoked.
Following the comments made by the court on 29 September 2005, presumably in an attempt to achieve a compromise, the Corporation nominated persons numbered 61 to 70 on the order of merit for promotion and all of Mr Durkin’s clients withdrew their appeals. Instead of challenging the nominations of numbers 1 to 38 as they had previously done they thereafter sought to protect their own nominations against the appeals by the remaining appellants who are numbers 70 and below. However, the positions of each of Mr Durkin’s clients were not the same, because there was no valid appeal against numbers 39 to 48 inclusive and numbers 61 to 70. Presumably the omission to lodge timely appeals against numbers 39 to 48 and 61 to 70 was an oversight by the appellants.
The basis upon which Mr Durkin has applied for costs is that, but for the promotion of numbers 61 to 70, his clients would have pursued the process argument. That argument does not apply to numbers 39 to 60 who in August 2005 had already been promoted and therefore had a different interest from numbers 61 to 70 whose nomination was still subject to appeal.
In paragraph 37 of the transcript of the comments made on 29 September 2005 the court intimated that, subject to any submissions that may be made, there was a possibility that all of the Group 1 appeals would be allowed and the thirty-eight nominations would be remitted to the Corporation so that a fresh process could be conducted. We also intimated that the same result may follow with respect to the other nominations. Ironically, if that had happened some of Mr Durkin’s clients who were appellants may have had their own nominations revoked.
For present purposes, Mr Durkin’s clients argue that they had a meritorious argument with respect to the unfairness of the process which would have succeeded if numbers 61 to 70 had not been nominated and the Group 1 appeals were pursued.
Following the nomination of all of Mr Durkin’s clients (numbers 39 to 70) his clients were effectively in the same situation as numbers 1 to 38, that is, nominees for promotion who were protecting their nominations. Some of his clients, namely those against whom there was no valid appeal, may have had no continuing interest in the proceedings. In any event, when the hearing of the preliminary point resumed in December 2005 Mr Durkin reversed his submission and argued against an order revoking any of the nominations.
If the application by Mr Durkin for costs was made only by numbers 39 to 48 on the order of merit there may have been no basis for an order for costs. From the outset, those persons had already been nominated and were not the subject of an appeal. However, the same argument was put on behalf of all of Mr Durkin’s clients. During the proceedings there has appeared to be a bond of solidarity amongst the Group 1 appellants. Persons numbered 61 to 70 on the order of merit did receive a benefit as a consequence of the events which followed the hearing on 22 and 23 August 2005 and the comments of the court on 29 September 2005.
There is evidence that the criteria for promotion were changed many times in a way which had prejudiced all of the Group 1 appellants. It was the conduct of the Corporation which provided the basis for the process argument raised by the Group 1 appellants on 22 and 23 August 2005.
Group 1 appellants, numbers 61 to 70, were successful in obtaining promotion as a result of a compromise reached following the argument put on their behalf on 22 and 23 August 2005. All of Mr Durkin’s clients were also successful subsequently in that they successfully resisted the arguments put by the Group 2 appellants in December 2005.
In December 2005, Mr Durkin’s clients presented an argument which was similar to that of the Corporation. Ordinarily, so far as the December hearing is concerned, they would be entitled to a costs order against the unsuccessful appellants but not the Corporation.
In our opinion it was appropriate for the Group 1 appellants to continue to be represented. They had been involved in the proceedings since the outset. Whether as appellants or nominees they had an interest in protecting their own positions. Their relationship with the Corporation is that of employer/employee. It was the conduct of the Corporation which created the situation of uncertainty.
We have concluded that the Corporation should pay the costs of all of the Group 1 appellants. Although the interests of his clients may have differed Mr Durkin would have been entitled to his costs if only one group of his clients had been successful. The argument which was presented was put on behalf of all of his clients.
Application by Mr Bourne on behalf of Mr John Foody - nominee
Mr Foody is one of the original thirty-eight nominees. The submissions made on his behalf are representative of the position of each of the thirty-eight original nominees who have been appealed against. Those persons are not parties to the appeals, but they have a real interest in the outcome in that they are persons whose nomination for promotion would be affected if a decision was made to allow an appeal against the nominations. The Act does not provide for their representation.
Mr Bourne appeared on Mr Foody’s behalf after the court provided the opportunity for the initial nominees to be represented if they wished. Mr Foody was only represented in these proceedings following the comments made on 29 September 2005. Mr Foody and the other thirty-seven nominees were not involved in the argument before the court in August and September 2005 and protection of their nominations vis-à-vis the Group 1 appellants, but have been involved in protecting their nominations against the appeals of the Group 2 appellants, Mr Stanley’s clients.
Although they are not parties to the proceedings, nominees number 1 to 38 have a real interest in the outcome. We formed the opinion that they should be represented. They have been successful vis-à-vis the Group 2 appellants.
The Corporation itself opposed the process argument of the Group 2 appellants. It presented a similar argument to that of Mr Foody. If the normal rules as between litigants in civil litigation applied, the unsuccessful Group 2 appellants might have been ordered to pay the costs of Mr Foody. However, the legislation does not permit such an order. Why should the Corporation which was itself successful be required to pay the costs of a party who presented an argument similar to itself? It could only be on the basis that the Corporation was the employer and it was the way in which the Corporation conducted the promotion process which gave rise to the preliminary process point.
The Corporation argued that Mr Foody is not a party to the proceedings and that for that reason there is no power to make a costs order in his favour.
As we have mentioned, the power to award costs is contained in section 40B(2) of the South Australian Metropolitan Fire Service Act 1936. By that Act Parliament has established the Corporation and given the Corporation the power to employ firemen and appoint station officers. The appeals which are being heard are part of a promotion process established by the Act as part of the overall activities of the Corporation.
There is nothing in the wording of section 40B(2) which expressly confines a costs order to appellants or any particular class of persons. In our opinion, there is no reason to imply such a restriction. The discretion to award costs is therefore at large.
In our opinion, given the context in which section 40B(2) appears, the power to award costs includes power to award such costs as are necessary to give effect to the purpose of the legislation and facilitate the operation of the Corporation. The appeals contemplated by Part 5, Division 1 of the South Australian Metropolitan Fire Service Act 1936 are not appeals in the course of inter parties civil litigation, but are an incident of the employment and promotion of firemen. The nominees whose positions are under attack have a real personal interest in the outcome of the proceedings. The rules of natural justice required that they should have the right to be heard on an attack against their positions.
In our opinion, the purpose of the Act requires that the costs of the persons whose nominations for promotion are at the heart of the appeals should be capable of being the subject of a costs order.
Mr Bourne emphasised that his client appeared at the “invitation” of the court. He said that his client elected to take up that invitation not only out of self-interest, but to provide the court with assistance by way of evidence and submissions.
There is no question that his client has been successful. In normal party/ party litigation his client would be entitled to recover his costs from the unsuccessful appellant. However, as we have said the Act does not permit that. Mr Bourne submitted that because it is only the Corporation which can be directed to pay costs, that is the only avenue open to his client, and that it is appropriate that his client recover his costs from the employer.
In our opinion, because of the employer/employee relationship and the nature of the context in which the appeals arise, there is a basis for making a costs order against the Corporation. Although the positions taken by the Corporation and Mr Foody on the preliminary point were similar and there was no contest between them, there is no reason why that should always be the case. The obligation on the Corporation to act impartially towards all employees means that its position will not always coincide with the position of Mr Foody or any nominee. We find that in the circumstances of these appeals it was important that the nominees for promotion whose positions were at risk should have been separately represented.
Mr Foody was represented at the invitation of the court. An invitation is of course different from a direction, but it was the conduct of the Corporation which gave rise to the need for his representation. The appeals could not be dealt with fairly without the benefit of the representation of the nominees whose positions were under attack. To do so would have been an infringement of the rules of natural justice. Mr Foody and the other thirty-seven initial nominees are employees of the Corporation. The predicament in which they find themselves is not of their own making but is a consequence of the actions of the Corporation.
There will be an order that the Corporation pay the costs of Mr Foody to be taxed or agreed.
Application by Mr Stanley - Group 2 appellants
Mr Stanley represented the appellants who have still not been nominated for promotion. They are known as the Group 2 appellants and are the persons numbered 71 and following in the order of merit. Those appellants were unsuccessful on their preliminary argument which attacked the process by which the nominations were made. The decision of the court, explained in the reasons published on 9 February 2005, dismissed the preliminary point raised by those appellants. Their individual appeals have yet to be heard on their merits and it is premature to make any observation about the possible outcome of the individual appeals or the costs implications.
Mr Stanley submitted that his clients had been successful on some issues. That is true, but the issues on which his clients were successful were matters of background statutory construction. Overall his clients were not successful on the merits of their preliminary process argument.
We find there is no basis upon which to make an order in their favour for costs of the preliminary point. The present application for costs by the clients of Mr Stanley is dismissed. Individual appellants can make a further application for costs if his individual appeal is successful. We cannot predict the outcome of such an application.
ORDERS:
1Mr Foody and the persons represented by Mr Durkin of counsel shall have their costs of the preliminary application to be taxed.
2The application for costs on behalf of the Group 2 appellants, namely the appellants represented by Mr Stanley of counsel, is dismissed.