Parker v City of Rockingham - [2021] WASCA 120

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   PARKER -v- CITY OF ROCKINGHAM [2021] WASCA 120
CORAM:   BUSS P
MURPHY JA
VAUGHAN JA

HEARD:   19 MARCH 2021
DELIVERED          :   19 JULY 2021
FILE NO/S:   CACV 77 of 2020
BETWEEN:   DALE PARKER
Appellant
AND
CITY OF ROCKINGHAM
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   VERNON DCJ
Citation: PARKER v CITY OF ROCKINGHAM [2020] WADC 90
File Number            :   APP 69 of 2019

Catchwords:

Local government - Costs - Section 6.56(1) of the Local Government Act 1995 (WA) - Section 36Z(2) of the Fire and Emergency Services Act 1998 (WA) - Statutory right of a local government to recover arrears of rates, service charges and levies 'as well as the costs of proceedings, if any, for that recovery' in a court of competent jurisdiction - Whether the statutory right confers on a local government an independent and substantive right to recover costs which is distinct from the court's ordinary discretionary power to award costs in civil proceedings - The nature and extent of the costs which a local government may recover under s 6.56(1) or s 36Z(2) - Burden of proof in relation to the reasonableness of the costs

Legislation:

Local Government Act 1995 (WA), s 6.56(1)
Fire and Emergency Services Act 1998 (WA), s 36Z(2)

Result:

Appeal allowed in part

Category: A

Representation:

Counsel:

Appellant	:	Mr B W Ashdown
Respondent	:	Mr J C Yeldon

Solicitors:

Appellant	:	Rowe Bristol Lawyers
Respondent	:	CS Legal

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

Affleck v The King [1906] HCA 2; (1906) 3 CLR 608
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27
Alphapharm Pty Ltd v H Lundbeck A/S [2014] HCA 42; (2014) 254 CLR 247
Attorney‑General of Queensland v Holland [1912] HCA 26; (1912) 15 CLR 46
Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384
Currie v Dempsey [1967] 2 NSWR 532
Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503
Johnson v The King [1904] AC 817
Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214
Minister for Employment and Workplace Relations (Cth) v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194
O'Dea v Shire of Coolgardie [2013] WADC 150
Owners of Strata Plan 36131 v Dimitriou [2009] NSWCA 27; (2009) 74 NSWLR 370
Parker v City of Rockingham [2020] WADC 90
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362
Travelex Ltd v Federal Commissioner of Taxation [2010] HCA 33; (2010) 241 CLR 510
Wentworth v Attorney-General (NSW) [1984] HCA 70; (1984) 154 CLR 518

JUDGMENT OF THE COURT:

The respondent is a local government established under the Local Government Act 1995 (WA) (LGA).
The respondent (as plaintiff) commenced proceedings against the appellant (as defendant) in the Rockingham Magistrates Court to recover arrears of rates and service charges imposed under the LGA and levies imposed under the Fire and Emergency Services Act 1998 (WA) (FESA) (collectively 'Rates'). The respondent also claimed, relevantly, the costs of the proceedings for the recovery of the Rates.
The respondent claimed the costs of the proceedings pursuant to s 6.56(1) of the LGA and s 36Z(2) of the FESA.
Section 6.56(1) of the LGA provides:
If a rate or service charge remains unpaid after it becomes due and payable, the local government may recover it, as well as the costs of proceedings, if any, for that recovery, in a court of competent jurisdiction.
Section 36Z(2) of the FESA provides, relevantly:
If the levy remains unpaid after it becomes due and payable, the local government … may recover it and any levy interest, as well as any costs of proceedings for that recovery, in a court of competent jurisdiction as a debt due to the local government …
The issues in contest between the appellant and the respondent in the Magistrates Court and on appeal by the appellant to the District Court included the proper construction and application of s 6.56(1) of the LGA in relation to the legal costs claimed by the respondent in the Magistrates Court.
Although the respondent's claim for legal costs was made partly in reliance on s 36Z(2) of the FESA, the appellant and the respondent have argued the dispute by reference to s 6.56(1) of the LGA, on the basis that both provisions should be construed and applied in the same manner.
In the Magistrates Court, Magistrate Atkins entered judgment in favour of the respondent on its claim for Rates in the sum of $13,232.62 and ordered that the appellant pay the respondent's costs of the proceedings, pursuant to s 6.56(1) of the LGA, in the sum of $62,344.96.
In the District Court, Vernon DCJ made orders on the appellant's appeal from the Magistrates Court as follows:
1.The appeal be allowed in part.
2.That part of the judgment of the Magistrates Court made on 14 August 2019 providing 'and further judgment is entered in favour of the claimant for costs of proceedings pursuant to s 6.56 Local Government Act 1995 in the sum of $62,344.96' be set aside.
3.The matter be remitted to the Rockingham Magistrates Court for further determination of what order for disclosure of documents, relevant to the assessment of the respondent's costs should be made, and determination of the issue of the assessment of the respondent's costs, in particular whether the respondent's costs were in an unreasonable amount or unreasonably incurred.
4.The respondent pay 40% of the appellant's costs of the appeal, to be taxed if not agreed. (original emphasis)
In the appeal to this court, the appellant contends that Vernon DCJ misconstrued and misapplied s 6.56(1) of the LGA and s 36Z(2) of the FESA in relation to the orders concerning the respondent's claim for the costs of the proceedings in the Magistrates Court for the recovery of the Rates.
We would allow the appeal in relation to the terms of the remittal to the Rockingham Magistrates Court. Otherwise, the appeal should be dismissed. Our reasons are as follows.

The relevant decision and reasoning in the Magistrates Court

On 14 August 2019, Magistrate Atkins entered judgment for the respondent on its claim against the appellant. The amount for which judgment was entered comprised arrears of Rates and interest on the arrears in the total sum of $13,232.62 and the costs of the proceedings for recovery of the Rates. The costs were fixed in the sum of $62,344.96.
The Magistrate decided in essence that, pursuant to s 6.56(1) of the LGA, the respondent had an entitlement to recover the legal costs it had incurred in relation to the proceedings upon proof of the amount of those costs. Her Honour was of the view that she had no discretion to assess the amount of the legal costs that should be awarded. Her Honour considered that the only issue to be determined under s 6.56(1) was whether the respondent had, in fact, incurred the legal costs it claimed. Her Honour followed the decision and reasoning of Davis DCJ in O'Dea v Shire of Coolgardie[1] in construing and applying s 6.56(1).
[1] O'Dea v Shire of Coolgardie [2013] WADC 150.
The respondent proved the amount of the legal costs it had incurred by adducing evidence from its Director of Corporate Services, John Pearson. Mr Pearson gave evidence, which was not contested by the appellant, that the respondent had paid to its solicitors the legal costs it claimed, being the sum of $62,344.96. The respondent tendered a number of documents including, relevantly, a costs agreement between the respondent and its solicitors, a costs agreement between the respondent's solicitors and counsel engaged to act in the proceedings, and itemised invoices from the respondent's solicitors and from counsel.
The Magistrate dismissed the appellant's application for an order that the respondent disclose further documents relevant to the assessment of the reasonableness of the legal costs.

The relevant decision and reasoning in the District Court

The appellant appealed to the District Court against the Magistrate's judgment, including that part of the judgment which awarded to the respondent the costs of the proceedings for the recovery of the Rates.
The appellant's appeal to the District Court was heard and determined by Vernon DCJ.
On 19 June 2020, her Honour allowed the appeal in part and published reasons for decision. See Parker v City of Rockingham.[2]
[2] Parker v City of Rockingham [2020] WADC 90.
Vernon DCJ relevantly held, in effect, as follows:
(a)Section 6.56(1) of the LGA confers on a local government an independent and substantive right to recover legal costs without the making of a costs order by the court in the exercise of its ordinary power to award costs in the proceedings [53] ‑ [54]. Section 6.56(1) provides for recovery of the costs 'as a debt due to the local government, in the same way as that provision allows for the recovery of rates and service charges as a debt' [56].
(b)The Magistrate had power to order the appellant to pay, pursuant to s 6.56(1), the legal costs of the proceedings incurred by the respondent for the recovery of the Rates, subject to the amount of the claim for costs being within the Magistrates Court's monetary limit [57].
(c)The ordinary meaning of the words 'the costs of proceedings, if any, for that recovery' in s 6.56(1) 'would appear to be to entitle a local government to recover the costs it has paid, or is liable to pay, to its legal representatives in pursuing the recovery proceedings; that is by way of indemnity' [68]. Vernon DCJ said that this interpretation 'is supported … by use of the definite article 'the' before costs' [68].
(d)A costs order made in the exercise of a court's discretion 'is always made on an indemnity basis, however described', but 'those costs will usually be ordered on a party and party basis, the effect of which is to provide only a partial indemnity to the successful party' [69]. An indemnity costs order departs from the usual order for costs on a party and party basis, and 'will properly be ordered in appropriate cases where there is some special or unusual feature to justify the court exercising its discretion in this way' [73].
(e)The Magistrates Court does not have power to award indemnity costs when making a costs order under s 25 of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (MCA). However, as with the Supreme Court and the District Court, the Magistrates Court has power to make a special costs order under s 280(2) of the Legal Profession Act 2008 (WA) on the basis that the applicable costs determination is inadequate because of the unusual difficulty, complexity or importance of the matter [80].
(f)Interpreting the recovery of 'the costs of proceedings, if any, for that recovery', within s 6.56(1), 'by implying the word "reasonable" before the word "costs" is contrary to the plain words of the section' [82]. Vernon DCJ said that '[t]he words, so interpreted, would add nothing to the recovery that the local authority was already entitled in the Magistrates Court, if successful in proceedings to recover the rates, rendering superfluous the specific reference to costs in s 6.56'. Her Honour added that '[s]uch an interpretation could, potentially, limit the basis on which a local government might be entitled, in the Supreme and District Court, to obtain costs' [82]. Her Honour then said that she did not consider that 'the words in s 6.56 can be differentially interpreted according to the legislation governing the individual court in which the proceedings to recover arrears might be brought' [82].
(g)The words 'the costs of proceedings, if any, [for] that recovery', within s 6.56(1), therefore mean the costs the local government has incurred, on an indemnity basis, in the recovery proceedings [89]. Vernon DCJ said that this interpretation 'is consistent with the evident purpose of pt 6 of Div 6, in which s 6.56 appears'. Part 6 of Div 6 is directed 'to protecting a local government's revenue, which is essential to it performing its statutory functions' and this is achieved 'by restricting the defences available to a ratepayer … by facilitating the ability of a local government to recover rates, and by providing for the recovery of enforcement costs' [90]. Her Honour said she acknowledged that her interpretation of s 6.56(1) 'gives a local government greater rights than other litigants, who are subject to the limits of a court's discretion as to the award of costs and [the assessment of] those costs on a taxation', but, in her Honour's view, 'that consideration does not warrant the imposition of limits to the right of recovery contrary to what [her Honour considered] to be the legislative intention' [91].
(h)However, a local government's entitlement to recover the costs of the proceedings, on an indemnity basis, pursuant to s 6.56(1), is not unfettered [92]. In particular, the local government's entitlement to recover costs, on an indemnity basis, does not include costs which the court finds are unreasonable in amount or costs which the court finds were unreasonably incurred [94].
(i)The local government does not have to establish that the costs of the recovery proceedings which it claims were 'necessary, or proper, or in a reasonable amount' [95]. However, 'it is open to [the defendant] to seek to prove that the claimed costs [are] in an unreasonable amount or [were] unreasonably incurred, in which case the matter will fall to the determination of the court' [95]. Vernon DCJ said that the defendant had an 'evidentiary onus' in that respect [95].
(j)Section 6.56(1) confers 'a substantive cause of action, in debt, to recover the legal costs of proceedings to recover arrears of rates, on an indemnity basis, and … it is not necessary for the magistrate to separately exercise the power to order costs under s 25 of [the MCA]' [100].
(k)'[A]lthough prima facie the respondent was entitled to recover the costs actually incurred, it was open to the appellant to dispute the quantum of the costs claim on the basis that those costs were in an unreasonable amount or unreasonably incurred' [103]. Her Honour said that the issue of unreasonableness was 'clearly raised by the appellant at the hearing' before the Magistrate [103]. Her Honour added that 'it was open to the appellant to raise the issue of the unreasonableness of the costs on the face of the invoices, in light of the apparent disproportion between the costs claimed and the amount of the arrears of rates, the costs ultimately ordered being nearly five times the amount recovered for arrears of rates' [103]. Her Honour was therefore of the view that 'the issue of whether the costs claimed were in an unreasonable amount or unreasonably incurred was before [the Magistrate]' [103].
(l)The Magistrate erred in law in refusing to order the respondent to disclose relevant documents which underpinned the respondent's claim for legal costs and were relevant in determining whether the costs claimed were unreasonable in amount or unreasonably incurred [104(a)].
(m)The Magistrate erred in law in determining the amount of the respondent's claim for legal costs under s 6.56(1) based solely on the invoices proved by the respondent and without undertaking an assessment to determine whether the costs claimed were unreasonable in amount or unreasonably incurred [104(b)].
Vernon DCJ ordered that the judgment for legal costs in the sum of $62,344.96 entered by the Magistrate in favour of the respondent be set aside [108].
Her Honour also ordered that the matter be remitted to the Rockingham Magistrates Court, before the same or another magistrate, for:
(a)a determination of the orders that should be made for the disclosure of documents relevant to an assessment of the respondent's costs; and
(b)the assessment of the respondent's costs; in particular, whether the respondent's costs were unreasonable in amount or unreasonably incurred [108].

The appellant's grounds of appeal to this court

The appellant has appealed to this court on two grounds.
Ground 1 alleges, in substance, that Vernon DCJ erred in law in holding that s 6.56(1) of the LGA and s 36Z(2) of the FESA confer on a local government an entitlement to legal costs on an indemnity basis.
Ground 2 alleges, in substance, that Vernon DCJ erred in law in holding that s 6.56(1) of the LGA and s 36Z(2) of the FESA confer on a local government an independent and substantive right to recover legal costs without the making of a costs order by the court in the exercise of its ordinary power to award costs in the proceedings.
It is logical to deal with ground 2 before ground 1.

Ground 2: the appellant's submissions

Counsel for the appellant submitted that neither s 6.56(1) of the LGA nor s 36Z(2) of the FESA confers on a local government an independent and substantive right to recover legal costs without the making of a costs order by the court in the exercise of its ordinary power to award costs in the proceedings.
It was submitted that, upon a proper construction of s 6.56(1) and s 36Z(2), those provisions merely confer on a local government an 'entitlement' to recover legal costs pursuant to a costs order made by the court in the exercise of its ordinary discretionary power to award costs in the proceedings.
According to counsel for the appellant, a question 'may arise … as to whether or not a local government is to be identified with the Crown in such a way as may attract the rule that it neither pays [nor] receives legal costs when involved as a party in litigation'. It was submitted that '[i]t would be rational for Parliament to have included the words [in question in s 6.56(1) and s 36Z(2)] permitting recovery of costs by a local government to make clear that any such rule was not applicable'. Further, it was submitted that the purpose or object of the words 'as well as the costs of proceedings, if any, for that recovery' in s 6.56(1) and the words 'as well as any costs of proceedings for that recovery' in s 36Z(2) was to avoid any dispute as to whether a local government is an agent or emanation of the Crown and not to provide for an independent and substantive right, irrespective of the exercise of discretion by the court, to recover legal costs (appeal ts 6 ‑ 7).
Counsel argued that s 6.56(1) and s 36Z(2) do not address 'how any such right to costs, or power to award costs, is to interact with the usual exercise of a court's power and discretion with respect to costs'.
Counsel referred to the power with respect to legal costs contained in s 25 of the MCA. Relevant provisions of s 25 include:
(a)by s 25(1), the Magistrates Court may order a party to a case to pay the whole or a part of another party's costs in the case;
(b)by s 25(2), a successful party is entitled to an order under s 25(1) that the whole of its costs in the case be paid by the unsuccessful party, unless, relevantly, the Magistrates Court considers there is good reason not to make such an order; and
(c)by s 25(7), the amount of any costs to be paid is to be determined by the Magistrates Court unless the parties concerned agree on the amount.
Counsel argued that, at common law, a court does not have power to make an order as to legal costs. Any power of a court to award legal costs arises solely from statute. Counsel also argued that statutes have provided for courts to award legal costs pursuant to orders made in the exercise of the statutory powers and subject to the discretion of the courts.

According to counsel for the appellant, the construction of s 6.56(1) and s 36Z(2) adopted by the Magistrate and Vernon DCJ altered a 'fundamental and long established practice' with respect to the making of orders as to legal costs. The 'fundamental and long established practice' is that an award of legal costs is, by legislation and rule, generally discretionary. It was submitted that there is nothing in the text of s 6.56(1) or s 36Z(2) which requires the construction adopted by the Magistrate and Vernon DCJ or which evinces an intention to alter the 'fundamental and long established practice'. It was also submitted that extrinsic evidence with respect to the enactment of s 6.56(1) and s 36Z(2) does not indicate that Parliament intended to alter the 'fundamental and long established practice'.
Counsel contended that, in those circumstances, s 6.56(1) and s 36Z(2) should not be construed as altering the 'generally applicable position that would otherwise prevail'.
It was submitted that s 6.56(1) and s 36Z(2), properly construed, do not create 'a new and substantive right to recover costs without an order for costs and their taxation pursuant to the normal processes of the court'.

Ground 2: the respondent's submissions

Counsel for the respondent submitted that s 6.56(1) of the LGA and s 36Z(2) of the FESA should be construed as 'special recovery provisions' for the legal costs of local governments suing for the recovery of rates and service charges under the LGA and for the recovery of the emergency services levy under the FESA.
It was submitted that s 6.56(1) and s 36Z(2) are not analogous to s 25 of the MCA. In particular, s 6.56(1) and s 36Z(2) may be invoked by local governments without a costs order having been made by the court in the exercise of its ordinary power to award costs in the proceedings.
Counsel argued that each of s 6.56(1) and s 36Z(2) is part of a legislative scheme which has as its purpose or object the protection of the revenue of local governments and the recovery of rates, service charges and levies to enable local governments to fund their operations. The legislative scheme includes provisions which restrict the defences available to a ratepayer. Section 6.56(1) and s 36Z(2) must be construed in the context of the purpose of the legislative scheme.
Section 6.56(1) and s 36Z(2) confer rights on local governments in relation to legal costs which are different from and greater than any rights of other litigants with respect to legal costs.
It was submitted that, on the appellant's case, a local government's rights under s 6.56(1) and s 36Z(2) to recover legal costs are, in substance, superfluous having regard to s 25 of the MCA.

Ground 1: the appellant's submissions

Counsel for the appellant submitted that neither s 6.56(1) of the LGA nor s 36Z(2) of the FESA confers on a local government an entitlement to legal costs on an indemnity basis.
It was submitted that the phrase 'the costs of proceedings' in s 6.56(1) and the phrase 'any costs of proceedings' in s 36Z(2) do not refer to indemnity costs.
Counsel argued that a right to legal costs on an indemnity basis is extraordinary. Plain and unambiguous statutory language is required to confer a right of that kind. Nothing in the text of s 6.56(1) or s 36Z(2) indicates that Parliament intended to confer on local governments a right to costs on an indemnity basis.
It was submitted that the word 'costs' in s 6.56(1) and s 36Z(2) means party and party costs on the ordinary basis.
Counsel argued that if (contrary to the appellant's case) s 6.56(1) and s 36Z(2) confer on a local government an independent and substantive right, irrespective of the exercise of discretion by the court, to recover legal costs, the words 'the costs of proceedings' in s 6.56(1) and the words 'any costs of proceedings' in s 36Z(2), properly construed, mean party and party costs on the ordinary basis; alternatively, the costs actually incurred by the local government to the extent that those costs are reasonable (appeal ts 17 ‑ 18).

Ground 1: the respondent's submissions

Counsel for the respondent submitted that the words 'the costs of proceedings, if any, for that recovery' in s 6.56(1) of the LGA and the words 'any costs of proceedings for that recovery' in s 36Z(2) of the FESA mean 'the costs [the local government] has incurred pursuing recovery costs for rates, service charges and [levies] on an indemnity basis'.
It was submitted that Vernon DCJ was correct, for the reasons she gave, in deciding that s 6.56(1) entitled the respondent to indemnity for its costs.
However, at the hearing of the appeal, counsel accepted that the words 'the costs of proceedings' in s 6.56(1) and the words 'any costs of proceedings' in s 36Z(2) did not mean the costs of the proceedings actually incurred by the local government, irrespective of whether those costs were reasonable (appeal ts 21). Counsel also accepted that the words in question mean the costs of the proceedings actually incurred by the local government except to the extent that those costs are unreasonable in amount or have been unreasonably incurred (appeal ts 21). Counsel asserted that the onus of establishing reasonableness rested on the ratepayer (appeal ts 21). Counsel appeared to accept that the difference between the appellant and the respondent may only be in relation to the onus of proof (appeal ts 22).

The merits of the grounds of appeal: relevant principles of statutory construction

The focus of statutory construction is upon the text of the provisions having regard to their context and purpose.
The statutory text is the surest guide to Parliament's intention. A decision as to the meaning of the text requires consideration of the context, in its widest sense, including the general purpose and policy of the provision. See Project Blue Sky Inc v Australian Broadcasting Authority;[3] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT);[4] Travelex Ltd v Federal Commissioner of Taxation;[5] SZTAL v Minister for Immigration and Border Protection.[6]
[3] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69] (McHugh, Gummow, Kirby & Hayne JJ).
[4] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27 [47] (Hayne, Heydon, Crennan & Kiefel JJ).
[5] Travelex Ltd v Federal Commissioner of Taxation [2010] HCA 33; (2010) 241 CLR 510 [82] (Crennan & Bell JJ).
[6] SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 [14] (Kiefel CJ, Nettle & Gordon JJ).
The context includes the existing state of the law, the history of the legislative scheme and the mischief to which the statute is directed. See CIC Insurance Ltd v Bankstown Football Club Ltd.[7]
[7] CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey & Gummow JJ).
However, legislative history and extrinsic materials cannot displace the meaning of statutory text. Further, the examination of legislative history and extrinsic materials is not an end in itself. See Federal Commissioner of Taxation v Consolidated Media Holdings Ltd;[8] Alphapharm Pty Ltd v H Lundbeck A/S.[9]
[8] Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 [39] (French CJ, Hayne, Crennan, Bell & Gageler JJ).
[9] Alphapharm Pty Ltd v H Lundbeck A/S [2014] HCA 42; (2014) 254 CLR 247 [121] (Kiefel & Keane JJ).
The purpose of legislation must be derived from the statutory text and not from any assumption about the desired or desirable reach or operation of the relevant provisions. See Certain Lloyd's Underwriters v Cross.[10] The intended reach of a legislative provision is to be discerned from the words of the provision and not by making an a priori assumption about its purpose. See Minister for Employment and Workplace Relations (Cth) v Gribbles Radiology Pty Ltd.[11]
[10] Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 [26] (French CJ & Hayne J).
[11] Minister for Employment and Workplace Relations (Cth) v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194 [21] (Gleeson CJ, Hayne, Callinan & Heydon JJ).
Section 18 of the Interpretation Act 1984 (WA) provides that, in the interpretation of a provision of a written law (including all Acts for the time being in force), a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote that purpose or object. The requirement in s 18 that one construction be preferred to another can apply only where two constructions are otherwise open. If the ordinary meaning conveyed by the text of a provision is to be modified by reference to the purposes or objects underlying the written law, the modification must be able to be identified precisely as that which is necessary to give effect to those purposes or objects and it must be consistent with the text otherwise adopted by the draftsperson. Section 18 requires a court to construe a written law, and not rewrite it by reference to its purposes or objects. See Mills v Meeking.[12]
[12] Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214, 235 (Dawson J).

The merits of the grounds of appeal: the legislative history

The critical words in s 6.56(1) of the LGA, namely 'as well as the costs of proceedings, if any, for that recovery', and the critical words in s 36Z(2) of the FESA, namely 'as well as any costs of proceedings for that recovery', had their genesis in s 168 of the Municipal Institutions Act 1895 (WA).
Section 168 of the Municipal Institutions Act provided, relevantly, that the amount payable in respect of all rates struck under that Act were recoverable either by action at law, or by distress and sale, and such amount, with interest thereon at 10% per annum, 'and the amount of all costs, charges, and expenses of any proceedings to recover the same, shall constitute a charge and have priority after Crown debts to every security or claim … against the estate, real and personal, of the person liable to make payment of such amount' (emphasis added).
A provision in relevantly identical terms to s 168 of the Municipal Institutions Act was included in s 350 of the Municipal Institutions Act 1900 (WA), s 413 (later numbered s 417) of the Municipal Corporations Act 1906 (WA) and s 565(1)(a) of the Local Government Act 1960 (WA).

The merits of the grounds of appeal: extrinsic material

No relevant extrinsic material exists in relation to s 6.56(1) of the LGA or s 36Z(2) of the FESA. For example, neither of those provisions was referred to in the Minister's Second Reading Speech.
Counsel for the appellant and counsel for the respondent did not refer to any extrinsic material in relation to any legislative precursor of s 6.56(1) or s 36Z(2).

The merits of the grounds of appeal: the appellant's assertions that the Crown neither pays nor receives legal costs when the Crown is a party to litigation and that a local government may be an agent or emanation of the Crown in right of the State

At common law, the general rule is that the Crown neither pays nor receives legal costs in proceedings to which the Crown is a party. See, in the context of civil proceedings, Johnson v The King;[13] Attorney‑General of Queensland v Holland.[14]
[13] Johnson v The King [1904] AC 817, 825 (Lord Macnaghten, Lord Davey, Lord Robertson & Lord Lindley).
[14] Attorney‑General of Queensland v Holland [1912] HCA 26; (1912) 15 CLR 46, 49 (Griffith CJ).
However, the general rule at common law can be abrogated or modified by express words or by necessary implication in a statute which binds the Crown. See, for example, Affleck v The King;[15] Wentworth v Attorney-General (NSW).[16]
[15] Affleck v The King [1906] HCA 2; (1906) 3 CLR 608, 630 ‑ 631 (Griffith CJ delivering the judgment of the High Court).
[16] Wentworth v Attorney-General (NSW) [1984] HCA 70; (1984) 154 CLR 518, 527 ‑ 528 (Gibbs CJ, Mason, Brennan, Deane & Dawson JJ).
In Western Australia, the general rule at common law that the Crown in right of the State neither pays nor receives legal costs in civil proceedings to which the Crown in right of the State is a party has been abrogated.
In 1832 a statute (titled 'An Act to secure the Payment of Debts due to the Crown') was enacted (2 Will IV, No 5). The Act made provision for civil proceedings by the Crown for the enforcement and securing of debts allegedly due to the Crown. By s 2, relevantly, if the alleged debtor failed to appear in the civil court on the day appointed for showing cause, then upon proof that the alleged debtor had been personally served with notice to show cause, the court was bound to award execution against 'the body, lands and goods of the said debtor'. By s 3, relevantly, if the alleged debtor appeared on the day appointed for showing cause then if, after hearing the matter, 'the judgment of the Court shall be against the said Government, process of execution shall be forthwith issued in favour of the party recovering such judgment'. Section 4 provided, relevantly, that 'in case the debt so due to the said Government, together with costs, shall not be paid within five days after the day of date of the process of execution, the lands and chattels attached under such process … shall be sold by public auction by the Sheriff of the said Colony' (emphasis added).
In 1867 an ordinance (titled 'An Ordinance to facilitate Proceedings by Persons having Claims against the Government') was enacted (31 Vict, No 7). Section 1 of the Ordinance provided for persons having claims against the Colonial Government to petition the Governor for redress. In particular, s 1 provided, relevantly, that if the Governor, with the advice of his Executive Council, thought fit, 'the said petition shall be referred to the Supreme Court of the said Colony for trial by a jury or otherwise as such Court shall after such reference direct'. By s 4, the parties to any such proceedings in the Supreme Court shall have 'the same rights either by way of appeal, rehearing, motion for a new trial, or otherwise, as in ordinary cases at law or in equity'. By s 5, the costs of suit 'shall follow on either side as in ordinary cases between suitors, any law or practice to the contrary notwithstanding' (emphasis added).
The Crown Suits Act 1898 (WA) repealed the Act referred to at [62] above and the Ordinance referred to at [63] above.
Part II of the Crown Suits Act 1898 comprised s 8 to s 21 and was concerned with the recovery of debts and property by the Crown in right of the State.
By s 8 of the Crown Suits Act 1898, all debts, damages, duties, sums of money, land or goods due, payable or belonging to the Crown 'may be sued for and recovered by the means and in the manner prescribed in this Act'.
Section 20 of the Crown Suits Act 1898 provided that when the Crown was successful in any legal proceedings instituted by or on behalf of the Crown against any corporation or person or persons, 'a law officer shall be entitled to recover costs for and on behalf of the Crown whenever a judgment, order, or decree is given or made in favour of the Crown, in the same manner and under the same rules, regulations, and provisions as are in force touching the payment, recovery, or receipt of costs in proceedings between subject and subject'. (emphasis added)
By s 21 of the Crown Suits Act 1898, whenever in any legal proceedings under pt II of that Act 'a judgment, order, or decree has been given or made against the Crown, the defendant shall be entitled, subject to the provisions of this Act, to recover costs in like manner and subject to the same rules, regulations and provisions as though such proceedings had been between subject and subject, and such costs shall be paid by the Colonial Treasurer, on the warrant of the Governor, out of the Consolidated Revenue Fund'. (emphasis added)
Part III of the Crown Suits Act 1898 comprised s 22 to s 37 and was concerned with the mode of enforcing claims against the Crown in right of the State.
Section 29 provided that 'after any such judgment, order, or decree as aforesaid against the Crown has been given or pronounced', the Registrar of the Supreme Court 'shall give to the petitioner a certificate in the form contained in the Eleventh Schedule to this Act, or to the like effect, and sealed with the seal of the Supreme Court'. By s 30, on receipt of such certificate, the Governor may cause to be paid out of the Consolidated Revenue Fund 'such damages as under the authority of this part of this Act are assessed to or in favour of any such petitioner, and also any costs which are adjudged or awarded to him by the court'. (emphasis added)
The Crown Suits Act 1898 was repealed by s 2 of the Crown Suits Act 1947 (WA).
By s 3 of the Crown Suits Act 1947, as originally enacted, in the Act, the term 'Crown' was defined to mean 'the Crown in right of the Government of Western Australia'.
Section 5 of the Crown Suits Act 1947, as originally enacted, provided:
(1)Subject to this Act, the Crown may sue and be sued in any Court or otherwise competent jurisdiction in the same manner as a subject.
(2)Every proceeding shall be taken by or against the Crown under the title 'the State of Western Australia'.
By s 9 of the Crown Suits Act 1947, as originally enacted, subject to that Act, 'the same process shall be available both to the Crown and to the subject for the determination and enforcement of claims in His Majesty's civil courts'.
Section 10 of the Crown Suits Act 1947, as originally enacted, provided:
(1)No execution or other process in the nature of execution shall be issued out of any Court against the Crown, but after any judgment has been given against the Crown the Registrar of the Supreme Court shall give to the party in whose favour the judgment is given a certificate of such judgment in the prescribed form and sealed with the seal of the Supreme Court.
(2)On the receipt of such certificate the Governor shall cause to be paid out of the Consolidated Revenue Fund the amount of such judgment and costs to the person entitled to recover the same. (emphasis added)
The Crown Suits Act 1947 has been amended since it was originally enacted but, for present purposes, the amendments are immaterial. In particular:
(a)section 3 and s 5 have not been amended;
(b)section 9 has only been amended by substituting 'Her Majesty's civil courts' for 'His Majesty's civil Courts'; and
(c)section 10 has only been amended by substituting 'Consolidated Account' for 'Consolidated Revenue Fund', by substituting 'charged to' for 'paid out of' and by using lower case rather than upper case initial letters for some words.
It is plain, from the legislative provisions to which we have referred at [62] ‑ [76] above, that those provisions relevantly placed the Crown in right of the State in the same position as a subject with respect to civil proceedings, including in the same position as a subject with respect to the costs of the proceedings.
Legislative provisions which placed the Crown in right of the State in the same position as a subject with respect to civil proceedings, including the same position as a subject with respect to the costs of the proceedings, applied at all material times, for present purposes, including when s 6.56(1) of the LGA and s 36Z(2) of the FESA and their precursors were enacted.
Counsel for the appellant's contention that Parliament may have included the critical words, for the purposes of this appeal, in s 6.56(1) of the LGA and s 36Z(2) of the FESA because a local government may be 'identified with the Crown in such a way as may attract the rule that it neither pays [nor] receives legal costs when involved as a party in litigation' is without merit. The purpose or object of the critical words was not to avoid any dispute as to whether a local government is an agent or emanation of the Crown.

As we have explained, when s 6.56(1) and s 36Z(2) were introduced the general rule at common law that the Crown neither pays nor receives legal costs in civil proceedings to which the Crown is a party had been abrogated and modified by statute many years previously.
It is unnecessary, in the circumstances, to consider whether a local government is an agent or emanation of the Crown in right of the State.

The merits of the grounds of appeal: the judgment of the Court of Appeal of New South Wales in Owners of Strata Plan 36131 v Dimitriou

In Owners of Strata Plan 36131 v Dimitriou,[17] the Court of Appeal of New South Wales construed s 80(1) of the Strata Schemes Management Act 1996 (NSW). Section 80(1) contained a provision which is analogous to the words in question in s 6.56(1) of the LGA and s 36Z(2) of the FESA. It is therefore useful to examine the reasoning and decision in that case.
[17] Owners of Strata Plan 36131 v Dimitriou [2009] NSWCA 27; (2009) 74 NSWLR 370.
Section 80(1) provided:
An owners corporation may recover as a debt a contribution not paid at the end of one month after it becomes due and payable, together with any interest payable and the expenses of the owners corporation incurred in recovering those amounts.(emphasis added)
The issues before the Court of Appeal included whether the word 'expenses' in s 80(1) included legal costs and disbursements and, if so, whether there were limitations on the legal costs and disbursements that may be recovered, including limitations concerning reasonableness and limitations in relation to legal costs incurred in proceedings before the Consumer Trader and Tenancy Tribunal.
Hodgson JA (Handley AJA relevantly agreeing) held:
(a)The word 'expenses' in s 80(1) included legal costs and disbursements [33].
(b)Although recovery of legal costs and disbursements as part of a judgment would 'bypass mechanisms for costs assessment under the Legal Profession Act', the phrase 'expenses … incurred in recovering [contributions]' within s 80(1) extended to legal costs and disbursements 'only to the extent that such costs and disbursements are reasonably incurred and reasonable in amount; and the owners corporation claiming such costs and disbursements would have to prove this in order to obtain a judgment for them' [37].
(c)There were three different bases on which costs may be assessed under statutory provisions in New South Wales, namely solicitor and own client costs, party and party costs on the ordinary basis, and party and party costs on the indemnity basis [39].
(d)The onus was on an owners corporation to prove that the costs and disbursements it claimed had been reasonably incurred and were reasonable in amount, so that if a selection had to be made from the three different bases on which costs may be assessed under statutory provisions, party and party costs on the ordinary basis would be most appropriate [40]. Party and party costs on the indemnity basis would not be appropriate because that basis would include any costs that had not been shown to be reasonable [40]. Further, the costs and disbursements cannot be made reasonable by agreement between the owner's corporation and its legal practitioner [40].
Handley AJA observed, in separate reasons, that:
(a)An owners corporation was only entitled to recover its expenses pursuant to s 80(1) if the expenses were reasonably incurred and reasonable in amount [130]. The expenses must be fair and reasonable in relation to the rates charged and the work done [130].
(b)The owners corporation must prove by evidence that the expenses claimed were reasonable in amount and were reasonably incurred [132]. Its claim to those expenses was in the nature of a quantum meruit [132].

The merits of the grounds of appeal: the proper construction of s 6.56(1) of the LGA and s 36Z(2) of the FESA

Part 6 of the LGA comprises s 6.1 to s 6.82 and is headed 'Financial management'. Division 6 of pt 6 comprises s 6.25 to s 6.82 and is headed 'Rates and service charges'. Subdivision 5 of div 6 of pt 6 comprises s 6.54 to s 6.62 and is headed 'Recovery of unpaid rates and service charges'.
Section 6.56(1) is engaged if a rate or service charge 'remains unpaid after it becomes due and payable'.
If a rate or service charge 'remains unpaid after it becomes due and payable' then 'the local government may recover [the unpaid rate or service charge], as well as the costs of proceedings, if any, for that recovery, in a court of competent jurisdiction'.
The 'costs of proceedings' in s 6.56(1) refers to any 'costs of proceedings … for [the] recovery' of the unpaid rate or service charge in a court of competent jurisdiction.
That is, the 'costs of proceedings' within s 6.56(1) are costs incurred in proceedings in a court of competent jurisdiction for the recovery of the unpaid rate or service charge.
In our opinion, s 6.56(1) confers on a local government an independent and substantive right to recover costs which is distinct from the court's ordinary discretionary power to award costs in civil proceedings. Our reasons for that opinion are as follows.
First, as we have mentioned, there is no merit in counsel for the appellant's contention that the purpose or object of the critical words in s 6.56(1) was to avoid any dispute as to whether a local government is an agent or emanation of the Crown.
Secondly, at all material times, including when s 6.56(1) was enacted, courts of competent jurisdiction for the purposes of s 6.56(1) have had power under statute or rules of court to make orders for costs in civil proceedings, including civil proceedings to which the Crown in right of the State or any agent or emanation of the Crown is a party. See, for example, s 37 of the Supreme Court Act 1935 (WA); s 64 of the District Court of Western Australia Act 1969 (WA); and s 25 of the MCA.
Thirdly, at all material times, including when s 6.56(1) was enacted, the ordinary position under statute or rules of court has been that an award of costs in civil proceedings is in the discretion of the court. That is, the ordinary position under statute or rules of court is that the costs of civil proceedings are the subject of judicial discretion and a party to civil proceedings does not have a right to costs.
Fourthly, the ordinary and natural meaning of the critical words in s 6.56(1) is that if a rate or service charge 'remains unpaid after it becomes due and payable', then s 6.56(1) confers a right on the local government to recover, in a court of competent jurisdiction, the amount of the rate or service charge as well as the costs of proceedings, if any, for that recovery.
Fifthly, the right under s 6.56(1) is conferred on a local government in the context of a legislative scheme which is concerned with the financial management of the local government, including the imposition of rates and service charges to enable a local government to carry out its functions. Aspects of the scheme include, where a ratepayer fails to pay a rate or service charge, facilitating the local government's recovery of the rate or service charge and conferring on the local government a right to an award of its costs of proceedings, if any, for that recovery.
Sixthly, s 6.56(1) does not address how the provision in s 6.56(1) is to interact with the usual exercise of a court's discretionary power under statute or rules of court with respect to costs, but that is because s 6.56(1) confers on the local government a right to costs.
Seventhly, nothing in the text, context or apparent purpose or object of s 6.56(1) indicates that s 6.56(1) merely confers on a local government an 'entitlement' to recover costs pursuant to an order made in the exercise of the court's ordinary discretionary power to award costs in civil proceedings.
Eighthly, it is plain from the text of s 6.56(1) and the relevant context that the critical words in s 6.56(1) were intended to alter the ordinary position under statute or rules of court in relation to the awarding of costs in civil proceedings.
We are of the opinion, generally for the reasons we have given in relation to s 6.56(1), that s 36Z(2) of the FESA also confers on a local government an independent and substantive right to recover costs which is distinct from the court's ordinary discretionary power to award costs in civil proceedings.
We turn to consider the nature and extent of the costs which a local government may recover under s 6.56(1) of the LGA.
When s 6.56(1) was enacted it was well established that, ordinarily, courts order the unsuccessful party in civil proceedings to pay the costs of the successful party and that, ordinarily, those costs are assessed by reference to the applicable scale of costs.
Since the enactment of the Legal Profession Act the scale in respect of contentious business before, relevantly, the Supreme Court, the District Court or the Magistrates Court has been contained in determinations made by the Legal Costs Committee pursuant to div 5 of pt 10 of the Legal Profession Act.
Section 280 of the Legal Profession Act confers on a court the power, in specified circumstances, to make a special costs order including, for example, that the costs of a party in respect of, relevantly, civil proceedings be assessed without reference to some or all of the limits provided for in the relevant determination made by the Legal Costs Committee.
When s 6.56(1) was enacted it was also well established that, in exceptional circumstances, the Supreme Court or the District Court may order the unsuccessful party in civil proceedings to pay the costs of the successful party on an indemnity basis; that is, on the basis that the unsuccessful party pay the whole of the costs actually incurred by the successful party except to the extent that those costs have been unreasonably incurred or are unreasonable in amount.
Although s 6.56(1) confers on a local government a right to costs where the local government has brought proceedings for the recovery of a rate or service charge that is due and payable but unpaid, s 6.56(1) does not expressly state the nature and extent of the costs which a local government may recover under that provision. Section 6.56(1) merely refers to 'the costs of proceedings, if any, for [the] recovery' of the unpaid rate or service charge in a court of competent jurisdiction.
In our opinion, a local government's right to costs under s 6.56(1) is a right to recover the reasonable costs of the proceedings. Ordinarily, a local government's costs of the proceedings will be reasonable if or to the extent that the costs have been reasonably incurred and are reasonable in amount. Our reasons for those opinions are as follows.
First, Parliament has not specified the nature or extent of the costs which a local government may recover under s 6.56(1) by reference to any of the well established bases on which courts have traditionally ordered costs as between parties in civil proceedings (in particular, solicitor and own client costs, party and party costs on the ordinary basis, and party and party costs on the indemnity basis) or by reference to any relevant scale or determination.
Secondly, the use of the definite article 'the' before 'costs' in s 6.56(1) is an insecure foundation for concluding that a local government has a right to an unqualified indemnity for costs. It is inconceivable that Parliament would have intended that a local government should be entitled to recover from a ratepayer under s 6.56(1) costs actually incurred by the local government that have been unreasonably incurred or are unreasonable in amount.
Thirdly, it scarcely needs to be said that, as between a local government and its lawyers, the local government, acting properly, should not pay its lawyers any costs that have been unreasonably incurred or are unreasonable in amount, and lawyers, acting properly, should not charge any costs that have been unreasonably incurred or are unreasonable in amount.
Fourthly, if a purpose or object of the critical words of s 6.56(1) is the protection of a local government's revenue, then a local government's right to recover its reasonable (as distinct from its unreasonable) costs of the proceedings properly recognises and gives effect to that purpose or object.
Fifthly, if the critical words in s 6.56(1) were to be construed to confer on a local government a right to recover from a ratepayer under s 6.56(1) costs that are unreasonable in the sense that those costs have been unreasonably incurred or are unreasonable in amount, the beneficiary of that construction would be the local government's lawyers. That result is inherently unjust and, in the absence of clear language in s 6.56(1) to that effect, should not be adopted.
Sixthly, the concept of reasonableness, in the context of costs and expenses in connection with the provision of services (including legal costs for the provision of legal services), is well established and applied regularly by courts in the administration of civil justice.
Seventhly, qualifying a local government's right to recover costs under s 6.56(1) by reference to the reasonableness of the costs accords with ordinary notions of fairness. It is an implication which is open on the text of s 6.56(1).
Eighthly, qualifying a local government's right to recover costs under s 6.56(1) by reference to the reasonableness of the costs does not detract from the relevant character of s 6.56(1), namely the conferral on a local government of a right to costs which is not dependent on the exercise of the court's ordinary discretionary power to award costs in civil proceedings. Contrary to the conclusion of Vernon DCJ referred to at [19(f)] above, the qualification of reasonableness does not render the critical words of s 6.56(1) superfluous having regard to the court's ordinary discretionary power.
Ninthly, there is no inconsistency between a local government having a right to recover reasonable costs under s 6.56(1), on the one hand, and the making of a special costs order under s 280 of the Legal Profession Act in relation to the local government's costs, on the other. Where a court's power under s 280 to make a special costs order is enlivened, the power is not exercised to impose an obligation upon a party to pay costs which are unreasonable.
We are of the opinion, generally for the reasons we have given in relation to s 6.56(1), that a local government's right under s 36Z(2) of the FESA is also to recover the reasonable costs of the proceedings in question.
We turn to consider who bears the burden of proof in relation to the reasonableness of any costs of proceedings claimed by a local government under s 6.56(1) of the LGA. In particular, does a local government bear the legal burden of proving that the costs claimed by the local government are reasonable or does the ratepayer bear the legal burden of proving that the costs claimed by the local government are unreasonable or, at least, an evidential onus in relation to unreasonableness?
In Currie v Dempsey,[18] Walsh JA enunciated the general rule for determining the incidence of the burden of proof in proceedings. His Honour said (539):
In Purkess v. Crittenden, [1966] A.L.R. 98; 114 C.L.R. 164, at pp 167-8, it was said that the proposition there quoted from Phipson on Evidence, 10th ed., para. 92, has been frequently acknowledged. The proposition was that the expression "the burden of proof", as applied to judicial proceedings, "has two distinct and frequently confused meanings: (1) the burden of proof as a matter of law and pleading - the burden, as it has been called, of establishing a case, whether by preponderance of evidence, or beyond a reasonable doubt; and (2) the burden of proof in the sense of introducing evidence". The author went on to say, and this also was approved in the case last cited, that the burden of proof in the first sense is always stable, but the burden of proof in the second sense may shift constantly. In my opinion, the burden of proof in the first sense lies on a plaintiff, if the fact alleged (whether affirmative or negative in form) is an essential element in his cause of action, e.g. if its existence is a condition precedent to his right to maintain the action. The onus is on the defendant, if the allegation is not a denial of an essential ingredient in the cause of action, but is one which, if established, will constitute a good defence, that is, an "avoidance" of the claim which, prima facie, the plaintiff has.
[18] Currie v Dempsey [1967] 2 NSWR 532.
Walsh JA noted that when the issue in the proceedings concerns a right or a liability arising under statute, then, depending upon the intention which is to be attributed to Parliament, 'the existence of a particular fact may constitute one of the general conditions on which the right or liability depends or it may constitute a new and additional fact providing a special ground of excuse or exculpation' (539). His Honour said that, in the former case, the burden of proof lies on the person asserting the right or the liability and, in the latter case, on the person disputing the right or the liability (539).
In the present case, the proceedings before the Rockingham Magistrates Court in relation to the critical words in s 6.56(1) concerned the respondent's right to costs under that provision. The right conferred on the respondent by s 6.56(1) is a right to recover from the appellant the respondent's reasonable costs of the proceedings. The expression of the respondent's right under s 6.56(1), properly construed, by reference to the reasonableness of the costs is inherent in the statutory right which the respondent sought to enforce against the appellant. In those circumstances, the reasonableness of the costs is an essential element of the right and, consequently, the respondent bore the legal burden of proving reasonableness. The appellant was not required to satisfy an evidential onus.
We are of the opinion, generally for the reasons we have given in relation to s 6.56(1), that a local government also bears the legal burden of proof as to reasonableness in the context of the local government's right under s 36Z(2) of the FESA.

Conclusion

We would allow the appeal in relation to the terms of the remittal to the Rockingham Magistrates Court. The terms of the remittal must reflect the differences between our reasons as to the proper construction and application of s 6.56(1) of the LGA and Vernon DCJ's reasons. Otherwise, the appeal should be dismissed.
The parties should be heard in relation to the appropriate form of the orders in this appeal and as to the costs of this appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TW
Associate to the Honourable President Buss
19 JULY 2021