Paul and Paul Pty Ltd v Business Licensing Authority [No 2]
[2010] VSC 500
•9 November 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2010 0313
| PAUL & PAUL PTY LTD | Appellant |
| v | |
| BUSINESS LICENSING AUTHORITY | Respondent |
---
JUDGE: | KYROU J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 15 October 2010 (Written submissions filed on 21 and 25 October 2010) | |
DATE OF JUDGMENT: | 9 November 2010 | |
CASE MAY BE CITED AS: | Paul & Paul Pty Ltd v Business Licensing Authority [No 2] | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 500 | |
---
PRACTICE AND PROCEDURE – Costs – Business Licensing Authority as respondent ordered to pay appellant’s costs – Application for indemnity certificate – Whether Business Licensing Authority is ‘the Crown’ or a ‘person representing the Crown’ – Certificate granted – Appeal Costs Act 1998 (Vic) ss 4, 38.
---
| APPEARANCES: | Counsel | Solicitors |
| Paul & Paul Pty Ltd | Mr G R McCormick | Goldsmiths Lawyers |
| Business Licensing Authority | Mr S Reid | Victorian Government Solicitor |
HIS HONOUR:
Introduction
On 15 October 2010, I delivered reasons for judgment (‘substantive judgment’)[1] in which I allowed an appeal brought under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) from an order of the Victorian Civil and Administrative Tribunal (‘VCAT’) dated 8 January 2010, set aside that order and remitted the proceeding to the VCAT. The VCAT’s order had affirmed a decision of the Business Licensing Authority (‘BLA’) dated 28 August 2009 to impose three additional conditions on the motor car trader’s licence of Paul & Paul Pty Ltd (‘Paul & Paul’).
[1]Paul & Paul Pty Ltd v Business Licensing Authority [2010] VSC 460 (15 October 2010).
In the substantive judgment, I stated that I would hear from the parties on the question of costs. Mr McCormick, who appeared for Paul & Paul, and Mr Reid, who appeared for the BLA, made oral submissions at the hearing on 15 October 2010 and subsequently filed written submissions.
Mr McCormick submitted that Paul & Paul was entitled to receive its costs of the appeal to the Court.[2] Mr Reid submitted that it was appropriate for the BLA to be granted an indemnity certificate under s 4 of the Appeal Costs Act 1998 (Vic); alternatively, he submitted that no order should be made in relation to costs.
[2]Mr McCormick also submitted that Paul & Paul was entitled to receive its costs in the VCAT. As I indicated to counsel on 15 October 2010, I have decided not to make any order in relation to the parties’ costs in the VCAT. The question of whether any order for costs should be made in respect of the VCAT proceeding will be a matter for the VCAT.
Decision on costs
There is no basis in this proceeding for the Court to depart from the usual course that costs follow the event.[3] Accordingly, I will order that the BLA pay to Paul & Paul its costs of the appeal to the Court, including any reserved costs.
[3]Had it been necessary for me to do so, I would have accepted Mr McCormick’s submission that, on the appeal to this Court, the BLA adopted and vigorously supported the VCAT’s erroneous decision.
Decision on indemnity certificate
Section 4(1) of the Appeal Costs Act relevantly provides:
4 Application by respondent for indemnity certificate in respect of appeal
(1) If an appeal against a decision of a court[4] in a civil proceeding—
(a) to the Trial Division of the Supreme Court …
…
succeeds, a respondent to that appeal may apply to the Supreme Court for, and the court may grant, an indemnity certificate in respect of costs.
[4]‘Court’ relevantly includes ‘any tribunal or other body … from whose decision there is an appeal to a superior court on a question of law’: Appeal Costs Act s 3(1).
Section 38 of the Appeal Costs Act provides:
38 Crown cannot be granted an indemnity certificate
A court must not grant an indemnity certificate in favour of the Crown or any person representing the Crown.
As I indicated at the hearing on 15 October 2010, the critical issue that I must determine is whether the BLA is ‘the Crown’ or a ‘person representing the Crown’ for the purposes of s 38 of the Appeal Costs Act.
In A1 v Brouwer [No 2],[5] the Court of Appeal accepted that ‘the Crown’ for the purposes of s 38 of the Appeal Costs Act refers to ‘the executive as distinct from the legislative branch of government, represented by the Ministry and the administrative bureaucracy which attends to its business.’[6] The Court held that the Chief Commissioner of Police is a ‘person representing the Crown’ for those purposes because, among other things, Victoria Police is an agency of the executive government whose members perform important governmental functions; the Chief Commissioner is accountable to the Minister of Police and to the Cabinet; and the operations of Victoria Police are funded by way of annual appropriations out of consolidated revenue.[7]
[5][2007] VSCA 269 (29 November 2007).
[6][2007] VSCA 269 (29 November 2007) [4], quoting Sue v Hill (1999) 199 CLR 462, 499 [87].
[7]A1 v Brouwer [No 2] [2007] VSCA 269 (29 November 2007) [5].
In Towie v Medical Practitioners Board of Victoria,[8] the Court of Appeal held that the Medical Practitioners’ Board of Victoria (‘MPB’) was not a ‘person representing the Crown’ for the purposes of s 38 of the Appeal Costs Act. In arriving at this conclusion, the Court referred to the definition of ‘the Crown’ it had adopted in A1 v Brouwer [No 2][9] and relied upon the following facts: the MPB was a body corporate established by the (now repealed) Medical Practice Act 1994 (Vic); the members of the MPB were appointed by the Governor in Council and were not subject to the Public Sector Management and Employment Act 1998 (Vic);[10] the MPB was not part of the executive or its administrative bureaucracy and did not perform governmental functions; and the MPB was not answerable to a Minister or to the Cabinet.[11]
[8][2008] VSCA 157 (26 August 2008) (‘Towie’).
[9][2007] VSCA 269 (29 November 2007) [4].
[10]With respect, the Court of Appeal was mistaken: the Public Sector Management and Employment Act was not in force at the time of its decision. That Act was repealed on 5 April 2005 by s 113(1) of the Public Administration Act 2004 (Vic). At all relevant times, s 68(3) of the Medical Practice Act provided that the members of the MPB were not subject to the public service employment provisions in pt 3 of the Public Administration Act.
[11]Towie [2008] VSCA 157 (26 August 2008) [43]-[44].
The BLA was established by s 4(1) of the Business Licensing Authority Act 1998 (Vic) (‘BLA Act’). The fact that the BLA Act makes no provision as to whether the BLA represents the Crown does not give rise to any implication about the body’s status in relation to the Crown.[12]
[12]Interpretation of Legislation Act 1984 (Vic) s 46A(3).
The BLA has several key features in common with the MPB considered in Towie: the BLA is a body corporate established by statute;[13] it is not subject to the control or direction of a Minister; and, although its members are appointed by the Governor in Council,[14] they are not subject to the public service employment provisions in pt 3 of the Public Administration Act 2004 (Vic).[15] In addition, the BLA, rather than the State, is vicariously liable for the acts or omissions of its members.[16]
[13]BLA Act s 4(2)(a).
[14]BLA Act s 5(1).
[15]BLA Act sch cl 1(3).
[16]BLA Act s 19(2). Cf Police Regulation Act 1958 (Vic) s 123(2).
While the BLA’s function of administering the licensing and registration provisions of the Motor Car Traders Act 1986 (Vic) and other legislation[17] could be characterised as broadly governmental in nature, in my opinion, the BLA’s status as a statutory corporation and the arrangements under which it operates provide for considerable independence from the executive government in the performance of that function.
[17]BLA Act s 6.
For the reasons given in [11] and [12] above, I conclude that the BLA is not ‘the Crown’ or a ‘person representing the Crown’ for the purposes of s 38 of the Appeal Costs Act.
Given that the formal requirements in s 4 of the Appeal Costs Act are satisfied, the BLA is entitled to seek an indemnity certificate. The question remains whether the BLA’s application should succeed. Under s 4 of the Appeal Costs Act, the Court has a discretion to refuse to grant an indemnity certificate, even though the applicant has satisfied the formal requirements in the legislation.[18] Nonetheless, in my opinion, there is no basis in this proceeding for refusing to grant to the BLA an indemnity certificate in respect of the costs of the appeal.
[18]See above [5]. See, eg, Towie [2008] VSCA 157 (26 August 2008) [46].
Accordingly, I will grant the indemnity certificate.
---
5
0