Minniti v Motor Vehicle Industry Board
[2011] WASCA 275 (S)
•23 DECEMBER 2011
MINNITI -v- MOTOR VEHICLE INDUSTRY BOARD [2011] WASCA 275 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASCA 275 (S) | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:52/2010 | 17 OCTOBER 2011 | |
| Coram: | PULLIN JA NEWNES JA MURPHY JA | 23/12/11 | |
| 9/03/12 | |||
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Appellant to pay respondent's costs of proceedings, including costs of stay application before Newnes JA on 2 September 2010, to be taxed if not agreed | ||
| B | |||
| PDF Version |
| Parties: | PASQUALE MINNITI MOTOR VEHICLE INDUSTRY BOARD |
Catchwords: | Determination of costs of appeal Whether appellant successful in the appeal Public interest Turns on own facts |
Legislation: | Rules of the Supreme Court 1971 (WA), O 66 r 1(1) State Administrative Tribunal Act 2004 (WA), s 105(9) Supreme Court Act 1935 (WA), s 37 |
Case References: | Amaca Pty Ltd (formerly James Hardie & Co Pty Ltd) v Hannell [2007] WASCA 158 (S) Commissioner of State Taxation v EDI Rail (Maryborough) Pty Ltd [2010] WASCA 17 (S) Frigger v Professional Services of Australia Pty Ltd [No 2] [2011] WASCA 103 (S) Keet v Ward [2011] WASCA 139 Laws v Australian Broadcasting Tribunal (1989) 85 ALR 659 McAuliffe v Secretary, Department of Social Security (1991) 23 ALD 284 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 Rampling v Emergency Services Superannuation Board (1994) 6 VAR 199 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MINNITI -v- MOTOR VEHICLE INDUSTRY BOARD [2011] WASCA 275 (S) CORAM : PULLIN JA
- NEWNES JA
MURPHY JA
DECISION : 9 MARCH 2012 FILE NO/S : CACV 52 of 2010 BETWEEN : PASQUALE MINNITI
- Appellant
AND
MOTOR VEHICLE INDUSTRY BOARD
Respondent
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram : JUDGE J PRITCHARD (DEPUTY PRESIDENT)
- MS J HAWKINS (MEMBER)
MR A TOWNSEND (SESSIONAL MEMBER)
File No : VR 183 of 2009, VR 184 of 2009
(Page 2)
Catchwords:
Determination of costs of appeal - Whether appellant successful in the appeal - Public interest - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA), O 66 r 1(1)
State Administrative Tribunal Act 2004 (WA), s 105(9)
Supreme Court Act 1935 (WA), s 37
Result:
Appellant to pay respondent's costs of proceedings, including costs of stay application before Newnes JA on 2 September 2010, to be taxed if not agreed
Category: B
Representation:
Counsel:
Appellant : Mr D R Williams QC & Mr A P Skerritt
Respondent : Mr P J Urquhart & Ms H L Kerr
Solicitors:
Appellant : MacLean Legal
Respondent : Department of Commerce
Case(s) referred to in judgment(s):
Amaca Pty Ltd (formerly James Hardie & Co Pty Ltd) v Hannell [2007] WASCA 158 (S)
Commissioner of State Taxation v EDI Rail (Maryborough) Pty Ltd [2010] WASCA 17 (S)
Frigger v Professional Services of Australia Pty Ltd [No 2] [2011] WASCA 103 (S)
Keet v Ward [2011] WASCA 139
Laws v Australian Broadcasting Tribunal (1989) 85 ALR 659
McAuliffe v Secretary, Department of Social Security (1991) 23 ALD 284
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Rampling v Emergency Services Superannuation Board (1994) 6 VAR 199
(Page 4)
1 REASONS OF THE COURT: This matter involved an appeal from a decision of the State Administrative Tribunal (the Tribunal) to disqualify the appellant from holding a motor vehicle dealer's licence. There were eight grounds of appeal, each alleging different errors in the Tribunal's decision. Grounds 1 to 6 were not upheld, whilst grounds 7 and 8 were made out. To that extent, the appeal was allowed in part. However, the decision of the Tribunal was affirmed on the basis that its correctness was sustained by the matters in respect of which there had been no successful challenge in the appeal. These reasons deal with the costs of the appeal. The appellant contends that the respondent should pay his costs because he was successful in that he was granted leave to appeal and he succeeded on two grounds of appeal. The respondent, for its part, said that in substance it succeeded in the matter, and that it should have its costs of the appeal.
2 Pursuant to s 37 of the Supreme Court Act 1935 (WA), the court has a discretion to award costs, subject to the rules of the court or other Acts. An appellate court also has power under s 105(9) of the State Administrative Tribunal Act2004 (WA) to award costs: Commissioner of State Taxation v EDI Rail (Maryborough) Pty Ltd [2010] WASCA 17 (S) [7]. The discretion is to be exercised in accordance with established legal principle: Keet v Ward [2011] WASCA 139 [17]. As O 66 r 1(1) of the Rules of the Supreme Court 1971 (WA) indicates, generally costs will be awarded to a successful party.
3 Success in proceedings must be determined by a consideration of who in 'reality' was the successful party in the litigation: Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 [70] (McHugh J); Frigger v Professional Services of Australia Pty Ltd [No 2] [2011] WASCA 103 (S) [12]; Laws v Australian Broadcasting Tribunal (1989) 85 ALR 659, 677. In Frigger v Professional Services of Australia,the Court of Appeal focused on the 'primary objective' of the appellants in order to decide whether they had been successful: [7] - [8]. Ultimately, the court ordered that costs should 'follow success on the primary issue', but made an adjustment to take account of the fact that the appellant had succeeded on one issue: [13].
4 In the present case, in substance the appellant's contention was that the errors alleged in his grounds of appeal warranted the orders made by the Tribunal being set aside. It is clear that the appellant's primary objective was to overturn the Tribunal's decision and to have the appellant's vehicle dealer's licence reinstated. Whilst the appellant's seventh and eighth grounds of appeal were upheld, that was insufficient to
(Page 5)
- achieve his primary goal. The Tribunal's decision was not set aside. In reality, despite the appellant's success on two of the eight grounds, the respondent was the successful party in the appeal.
5 In relation to the two grounds which were upheld, one involved an error of fact by the Tribunal which was conceded in the respondent's answer, and the other did not occupy any significant time in the context of the hearing of the appeal as a whole. In Amaca Pty Ltd (formerly James Hardie & Co Pty Ltd) v Hannell [2007] WASCA 158 (S), the Court of Appeal stated at [7]:
[T]he power to adjust an order for costs by reference to particular issues upon which the generally successful party has failed, is properly exercised only where there are discrete and severable issues upon which the generally successful party has failed, and which have added to the cost of the proceedings in a significant and readily discernible way. In a case in which the generally successful party has failed on only a minor issue, which did not add materially to the cost of the conduct of the proceedings, it would not ordinarily be appropriate to depart from the general rule, unless the conduct of the generally successful party in relation to that issue had been unreasonable. In the event of unreasonableness, different considerations may apply.
6 In the circumstances of this case, we do not think that the appellant's limited success on two matters which did not ultimately affect the final result, warrants any departure from the general rule that costs should follow the event. The appellant's submission, in effect, that the respondent acted unreasonably in not conceding the appeal and by failing to agree to have the matter sent back to the Tribunal should be rejected. The respondent's contention was that despite any errors in relation to grounds 7 and 8, the Tribunal's decision was and remained correct and should not be set aside. That contention was, in substance, successful in this court.
7 In other cases which are somewhat analogous to the present case, where error was established, but a decision below was nonetheless affirmed, costs have been awarded to the successful party without making provision for the issues on which the unsuccessful party actually succeeded: Rampling v Emergency Services Superannuation Board (1994) 6 VAR 199; McAuliffe v Secretary, Department of Social Security (1991) 23 ALD 284.
8 Finally, the appellant contended that there was a 'public interest' in his 'pursuing the appeal and having the public record corrected'. We do not see any force in that submission. The appellant brought the appeal in
(Page 6)
- order, in effect, to preserve his ability to carry on his business using a vehicle dealer's licence. He failed in that objective. The litigation was instituted to protect his private interests. There was no wider public interest of the kind which could lead to a favourable costs outcome on his part.
9 There will be an order in the terms sought by the respondent, namely, that the appellant pay the respondent's costs of the proceedings, including the costs of the stay application before Newnes JA on 2 September 2010, to be taxed if not agreed.
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