Re Harrison
[2015] WASC 247 (S)
•20 AUGUST 2015
| JURISDICTION | : | SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS |
| CITATION | : | RE HARRISON; EX PARTE HAMES [2015] WASC 247 (S) |
| CORAM | : BEECH J | ||
| HEARD |
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| DELIVERED |
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| FILE NO/S |
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EX PARTE
DR KIM HAMES MLA, MINISTER FOR HEALTH
First Applicant
MICHAEL MISCHIN MLC, MINISTER FOR
COMMERCESecond Applicant
AND
COMMISSIONER J L HARRISON, WESTERN
AUSTRALIAN INDUSTRIAL RELATIONS
COMMISSIONERRespondent
Catchwords:
Practice and procedure - Costs - Appropriate costs orders
Legislation:
Nil
[2015] WASC 247 (S)
Result:
ANF pay 50% of the applicants' costs
Category: B
Representation:
Counsel:
| First Applicant | : | No appearance |
| Second Applicant | : | No appearance |
| Respondent | : | No appearance |
| Interested Party | : | No appearance |
Solicitors:
| First Applicant | : | State Solicitor for Western Australia |
| Second Applicant | : | State Solicitor for Western Australia |
| Respondent | : | No appearance |
| Interested Party | : | Australian Nursing Federation Legal Services |
Case(s) referred to in judgment(s):
Bowen v Alsanto Nominees Pty Ltd [2011] WASCA 39 (S)
Chen v Chan [No 2] [2009] VSCA 233
McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 (S)
Re Harrison; Ex parte Hames [2015] WASC 247
[2015] WASC 247 (S)
BEECH J
BEECH J:
Introduction
On 21 July 2015, I published reasons for decision in these
proceedings.[1]
[1] Re Harrison; Ex parte Hames [2015] WASC 247. In these reasons I use the terminology and abbreviations in
On 21 July 2015, I declared that cl 67 of the Agreement was invalid because on its proper construction it purports to:
(1) control an entity which is neither relevantly an employer or employee, nor a party to the proceedings before the respondent, namely the Queen Elizabeth II Medical Centre Trust; and (2) dictate how those charged with the responsibility for fixing parking fees near a relevant place of employment must discharge that responsibility. 3 I also made orders for the filing of submissions and affidavits in
relation to the question of costs, with that question to be determined on
the papers. These reasons deal with the costs of the proceedings.
The position of the parties
4 The Ministers contend, in essence, that they were successful in the
proceedings and that the ANF, as the contradictor in the proceedings,
ought to pay their costs.
The ANF contends that:
(1)
the Ministers delayed in serving notices under s 78B of the Judiciary Act 1903 (WA), and the ANF ought to have its costs of the necessary work occasioned by that delay;[2]
(2)
the Ministers should pay 50% of the ANF's costs because the ANF was substantially more successful in the proceedings than the Ministers, in that:
(a)
the Ministers succeeded only on the question of the proper construction of cl 67 of the Agreement, on which relatively little time was spent in submissions; and
[2] ANF Submissions [9] - [12].
[2015] WASC 247 (S)
BEECH J
(b)
the ANF succeeded on the substantial issues relating to the proper construction of s 41 and s 42G of the Industrial Relations Act 1979 (WA), and whether it was open to the Commission to find that cl 67 was with respect to an industrial matter;[3] and
[3] ANF Submissions [12] - [23]. 4 ANF Submissions [24] - [29].
(3)
further, the ANF says that it should have its costs after 14 April 2015 in that the Ministers unreasonably failed to accept an offer of compromise made by letter of 14 April 2015 in circumstances where acceptance of that offer would have substantially produced the same outcome as the final orders made.4
The exercise of the costs discretion
It is convenient to deal with the ANF's submissions in the reverse
order.
7 First, I am not satisfied that the Ministers' failure to accept the offer
in the ANF's solicitor's letter of 14 April 2015 was unreasonable, or that the failure to accept that offer should otherwise inform the proper exercise of the costs discretion.
8 A Calderbank offer that provides an outcome for the recipient that is
no less favourable than the result after trial may be relied on to justify an order for costs. While a finding that the offer was unreasonably rejected, judged at the time of the offer, is not a precondition to the power to award party-party costs based on the offer, the reasonableness of the recipient's conduct in not accepting it may be relevant to whether party-party costs should be awarded.[5]
[5] McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 (S) [128] - [129].
The terms of the proposed offer of settlement included that:
(1) cl 67 would be declared to be made without jurisdiction; and (2) the parties' joint application to the Industrial Relations Commission would be remitted to the Commission in order for the Commissioner to further exercise the jurisdiction under s 42G. 10 In my view, given the term of the proposed settlement that the matter
be remitted to the Commission, it cannot be said that the Ministers' failure to accept the proposed settlement was unreasonable, or that the offer
[2015] WASC 247 (S)
BEECH J
involved an outcome no less favourable to the Ministers than the result of
these proceedings.11 It is not necessarily the case that the declaration I made on 21 July
2015 will lead to the remission of any aspect of this matter to the Commissioner. The Ministers contend, and will contend before the Commissioner, that the jurisdiction of the Commission was founded on the parties' joint application by consent and is now exhausted. It is not appropriate to determine the merits of that contention in the present context. It is sufficient to say that that contention is reasonably arguable, and the existence of it sustains the conclusions that:
(1) the Ministers' failure to accept the offer of 14 April 2015 was not
unreasonable; and(2) acceptance of the offer would have produced a less favourable outcome for the Ministers than they obtained in these proceedings.
In exercising the costs discretion I apply the principles stated in
Bowen v Alsanto Nominees Pty Ltd[6] and in Chen v Chan.[7]
[6] Bowen v Alsanto Nominees Pty Ltd [2011] WASCA 39 (S) [5] - [8].[7] Chen v Chan [No 2] [2009] VSCA 233 [10].
13 I do not accept the ANF's contention that it was substantially more
successful than the Ministers in these proceedings and should have its costs. The ANF's contention does not give appropriate weight to the basic and important reality that the Ministers succeeded in these proceedings. In my view that starting point weighs strongly in the exercise of discretion. Nevertheless, I accept that the issues on which the ANF succeeded were significant, and occupied substantially more of the oral and written argument than the ultimately determinative issue of the proper construction of cl 67 of the Agreement. For that reason I consider that the Ministers should be awarded only a portion of their costs.
In the circumstances, it seems to me that the appropriate costs order is that the ANF pay 50% of the applicants' costs of the proceeding.
15 I am not persuaded that the question of the timing of the issue of
s 78B notices is one that should affect the exercise of the costs discretion. Initially, the Ministers contemplated that s 78B notices would be served, and consent orders to that end were made. Subsequently, the Ministers took the view that s 78B notices were unnecessary because the privative clause section of the Industrial Relations Act would appropriately be read down to avoid any invalidity. The ANF concurred with that approach.
[2015] WASC 247 (S)
BEECH J
The court adopted the view that, as a matter or prudence, s 78B notices were required. In the circumstances, the ultimate timing of the issue of s 78B notices should not in my view have any adverse costs consequence for the Ministers.
For these reasons, I make the following order as to costs:
(1) the Australian Nursing Federation, Industrial Union of Workers Perth, pay 50% of the applicants' costs of the application, to be taxed if not agreed.
those reasons.
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