Waters v Public Transport Corporation

[1992] HCA 9

HIGH COURT OF AUSTRALIA

Mason C.J., Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ.

P. WATERS AND ORS v. PUBLIC TRANSPORT CORPORATION

20 March 1992

Decision

MASON C.J., BRENNAN, DEANE, DAWSON, TOOHEY, GAUDRON AND McHUGH JJ. On 3 December 1991 the Court gave judgment, allowing the appeal and refusing the application for special leave to cross-appeal. In addition the Court set aside the order of the Supreme Court of Victoria allowing the appeal to that Court and dismissing the complaints. In lieu thereof, the Court ordered that the matter be remitted to the Equal Opportunity Board to determine, in accordance with s.17(5)(c) of the Equal Opportunity Act 1984 (Vict.), whether the requirements or conditions involved in the introduction of scratch tickets and removal of conductors from trams are reasonable and to determine the complaints accordingly.

2. The Court made no order as to the costs of the appeal to it or as to the costs of the proceedings in the Supreme Court of Victoria. By consent, the latter costs had been reserved by that Court. The parties have now made written submissions as to the costs in each case.

3. The appellants seek an order that the respondent pay their costs of the appeal to the Court and of the proceedings in the Supreme Court. The respondent opposes both applications; it does not seek any order for costs in its favour.

4. As a consequence of the appeal to the Court, the dismissal of the complaints to the Board has been set aside, although the ultimate fate of the complaints remains unknown. The order that the matter be remitted to the Board flows from a successful argument by the respondent as to the proper construction of s.17(5)(c) of the Equal Opportunity Act. Nevertheless, the appellants succeeded in their attack on the judgment of Phillips J. in the Supreme Court, namely, that there was no requirement or condition involved in the removal of conductors from trams and that the conduct of the respondent did not constitute unlawful acts of discrimination since it was necessary in order to comply with a direction of the Minister. The order allowing the appeal to the Court reflects the success of that attack. In the circumstances, the respondent should pay the appellants' costs of the appeal to the Court; the time taken on the s.17(5)(c) issue does not justify awarding only a percentage of costs.

5. As to the proceedings in the Supreme Court, it is true that the order dismissing the complaints has been set aside. But the parties each had some success in the Supreme Court, a success which was to some extent retained in the appeal to the Court. In those circumstances, it would be appropriate to order that the parties bear their own costs of the proceedings in the Supreme Court.

Orders

(1) The respondent pay the appellants' costs of the appeal to this Court.

(2) The parties bear their own costs of the proceedings in the Supreme Court.